R v Luther Takawira & Anor

This is an appeal against sentence brought with leave of the single judge.

On 15 March 2024, in the Crown Court at Winchester, the appellants were both sentenced for their parts in an offence of conspiracy to supply a Class A controlled drug (cocaine). Luther Takawira was sentenced to 15 years' imprisonment and Kai Williams to 16 years and six months' imprisonment. Takawira had been convicted by a jury; Williams had pleaded guilty a few days before the trial was due to begin.

In addition, Takawira was sentenced to three years' imprisonment, to be served concurrently for an offence of transferring criminal property. Williams was sentenced to 18 months' imprisonment, to be served consecutively, for an offence of being concerned in supplying a controlled drug of Class A.

Two other defendants were sentenced at the same hearing. James Cox, who was convicted after trial of the same offences as Takawira, was sentenced to a total of 12 years' imprisonment. Benjamin Fry, who was convicted following a trial of the count of conspiracy to supply class A drugs, was sentenced to 11 years' imprisonment.

The appellants were involved in a large-scale conspiracy to supply cocaine which ran for three months in April, May and June 2020. The conspiracy was controlled by a man named Alex Male. He was separately dealt with for his role in the conspiracy and received a term of 25 years' imprisonment.

The conspiracy involved the distribution of at least 133 kilograms of cocaine of high purity. It had a street value of more than £4.5 million.

Williams was Male's right-hand man and his close associate. He would obtain large quantities of cocaine from Male, which he then supplied on to his customer base. In particular the evidence showed that he was involved in the supply of 2.5 kilograms of cocaine on 6 April 2022; that he offered to supply a significant amount of cocaine to a man nicknamed "Kilochris" on 30 March 2022; and that he sent Fry to deliver a kilogram of cocaine to a man nicknamed "Babygap" on 3 April. He also boasted to "Babygap" on one occasion that he had sold 4 kilograms of the drug one morning. On 7 May he told a man known as Barbosa that he was expecting to come into possession of 6 kilograms of cocaine later that day. On another occasion, he told the same man that he could sell cocaine at £36,500 per kilogram. On 25 May he asked Barbosa whether he could sell him 2 kilograms of the drug, and said that he was awaiting delivery of 30 boxes of the drug himself.

Williams and Male communicated regularly using EncroChat encrypted devices and other encrypted forms of communication. Their messages revealed their joint involvement in the supply of drugs.

When Williams was arrested on 9 September 2020, the police found £4,000 in cash in his home, along with a large quantity of high value goods, with a retail value of approximately £40,000.

Takawira was shown to be a close associate of Williams. Messages outside of the indictment period suggested that Takawira was fully aware of the business in which Williams was involved, and was prepared to involve himself in it. Takawira was shown to have purchased half a kilogram of cocaine from Williams. He collected and stored cash as part of the conspiracy. He was involved on 11 May 2020 in delivering very significant quantities of cash to a third party. On 6 April 2020, he and Cox were sent by Williams to deliver 2.5 kilograms of cocaine across three separate addresses.

Takawira did not have an EncroChat device, but his mobile telephone records show that he had purchased drugs, including cocaine, from Wiliams and that he was in debt to him. In June 2020 he purchased half a kilogram of cocaine from Williams. He represented to Williams when he did so that he (Takawira) had a cash buyer for it who was willing to pay £19,000. That final transaction was the factual basis for the offence of being concerned in supplying a controlled drug.

When sentencing, the judge treated this as a conspiracy, the seriousness of which justified him going outside the range of sentences envisaged for a category 1 offence under the Sentencing Council definitive guideline. He said that this was an operation on the most serious and commercial scale. It involved a quantity of drugs significantly higher than the indicative amount for a category 1 cocaine offence (5 kilograms).

The judge adopted the guidance within the Sentencing Council guideline to the effect that sentences of 20 years and above are appropriate in cases such as this, depending on the role played by the offender. He indicated, as is proper practice, that his sentences for this conspiracy would be based on the overall seriousness of the offence, but with an eye to the individual role played by each participant. He concluded that each of the men he was sentencing had made significant financial gain from the conspiracy.

He determined that Williams had a leading role in what had occurred. In particular, he relied on his finding that Williams was Male's right-hand man; that he passed on instructions to others involved in the conspiracy; and that he himself played an active part in buying and selling drugs on a commercial scale. He indicated that Williams would have received a sentence of 19 years' imprisonment, but for his guilty plea. He afforded him approximately 15 per cent discount for his late plea, and thereby arrived at a sentence of 16½ years' imprisonment. He imposed a consecutive sentence for the supply of drugs to Takawira, which was separately indicted. He reduced what he said would otherwise have been a lengthy sentence for that offence to one of 18 months' imprisonment, to reflect totality.

As for Takawira, the judge determined that he was not just a courier, but rather someone who had played a significant part in the conspiracy. He relied on the fact that Takawira kept lists recording cash payments for cocaine for Male's benefit. He concluded that he had awareness of the total scale of the operation. He sentenced him to 15 years' imprisonment to reflect his role. There was no discount for a guilty plea in his case, as he had taken the matter to trial.

Williams' grounds of appeal are that the judge failed adequately to reflect in the notional pre-credit sentence his contention that the evidence did not demonstrate that the appellant was aware of the entirety of the conspiracy orchestrated by a co-accused.

Today in short and attractive submissions, it was put this way by Mr Schofield KC: first, the judge did not say in his sentencing remarks that Williams had an awareness of the extent of the conspiracy; and secondly, when one considers the evidence now, that is not a conclusion that was open to the judge to reach.

Williams' second ground of appeal is that the judge erred in imposing a consecutive sentence for the offence of supplying drugs to Takawira.

We have concluded that the first ground of appeal lacks merit. Although the judge does not say in terms in the course of his sentencing remarks that Williams was aware of the scale of this operation, the fact that the judge described the role of Williams as he did, and in particular his finding that Williams was Male's right-hand man, carries with it the necessary implication that he would have been aware that this was a supply of drugs on a very large scale, with commercial motives.

As to whether this was a decision that the judge could have reached, we note that Williams was a close associate of Male, who was at the heart of the conspiracy. He was trusted by Male, as can be shown by the frequent contact between the two of them, using EncroChat and other encrypted devices. Williams had made a significant amount of money from his involvement in what had occurred. While he could only be shown to have had a direct involvement in a relatively limited percentage of the cocaine involved in the conspiracy, he had undoubtedly spoken with other people about large amounts of cocaine that he was at times expecting to receive and to be able to sell on. He directed couriers to perform their tasks. It is inconceivable that he did all of this without knowledge of the extent of this conspiracy. That being so, the judge was right to sentence Williams outside of the table set out in the Sentencing Council definitive guideline and to move to a sentence of 19 years, before applying proper discount for the guilty plea.

However, as to the second ground of appeal, we have concluded that the sentence passed for the supply of drugs to Takawira ought to have been ordered to run concurrently with the sentence for the conspiracy, rather than consecutively to it. The offence of supply to Takawira involved the supply of drugs of the same class and nature as those covered by the conspiracy, by one conspirator to another, within the time period covered by the conspiracy, and where the drugs had originally been sourced by Male, as had the other drugs which were the subject matter of the conspiracy count. Whether this might technically have been regarded as yet a further part of the conspiracy, or as an offence so closely related to it that it was barely distinguishable from it, no additional term of imprisonment was merited.

Therefore, in the case of Williams, we allow the appeal to this extent. The sentences will remain as they were, but they will be served concurrently with one another, rather than consecutively. That reduces the overall term in his case to one of 16½ years' imprisonment.

We turn to the appeal of Takawira. In his case the grounds of appeal are: first, that the judge sentenced him outside of the guideline, without first warning his counsel that he proposed to do so, and thus denying counsel the opportunity to address the judge as to whether this was a justifiable course for the judge to take. Second, that the judge sentenced him on the wrong factual basis. He ought to have concluded that Takawira played a similar role in the conspiracy to Cox and Fry, and ought to have sentenced him to similar terms of imprisonment to those passed on those two defendants. He was not, it is submitted, shown to have known the extent of the conspiracy and therefore should not have been sentenced outside of the table in the guideline. Finally, and as a discrete point, it is said that the amount of credit given to Takawira in respect of the offence of transferring criminal property was inadequate to reflect his guilty plea.

Ordinarily, a defendant can expect that a judge will sentence him with reference to the appropriate Sentencing Council guideline. That happened in this case. Although the guideline sets out a table of starting points and ranges dependent on the role undertaken by a defendant and the amount of drug involved, the guideline specifically allows for a judge to move outside of those ranges. Step 2 in the guideline includes the following passage:

The amount of drug in this case was very significantly higher than the 5 kilograms of cocaine which is the indicative amount for a category 1 offence. This was a conspiracy which involved the supply of drugs on a serious and commercial scale. It fully justified the judge moving outside of the table to which we have been referred.

We accept that it is best practice for a judge to indicate during mitigation if he is contemplating sentencing in this way, so that the parties can address him on whether it is appropriate for the judge to take that course. Here, both the appellant and the respondent had suggested to the judge that Takawira could be sentenced using the table within the guideline. The judge did not apparently tell the parties that he took a different view.

Of course, an agreed position of this nature taken by the prosecution and defence in no way binds the judge as to the approach he should take. It is always for a judge to decide where any particular defendant fits within the guideline, or indeed, on occasions, whether he should be sentenced outside of it.

The question for us today, having heard the submissions made on behalf of Takawira, is whether the sentence arrived at by the judge was manifestly excessive. It is of note that, having considered their position after the grounds of appeal were lodged for Takawira, the prosecution have accepted that their initial position (i.e. that taken before the sentencing judge) was not one that it was proper for them to have taken.

We have concluded that the sentence passed on Takawira was not manifestly excessive. This court will be slow to interfere with the sentence of a judge where that sentence is based on conclusions he has drawn from the evidence that he has heard at trial.

The judge in this case was entitled to conclude that Takawira's role within this conspiracy was of a greater seriousness than the roles of Cox or Fry. Cox and Fry were sentenced as couriers. The judge also accepted that Cox had some involvement with money and with keeping a ledger of transactions. Although the appellant asserts that his role was no greater than that, the judge was entitled to find that this was not so. Takawira was a close associate of Williams, who was the right-hand man to Male. This could be determined from messages sent by Takawira to Williams in the period before the conspiracy began, which the judge was entitled to find showed an understanding of the business in which Williams was involved and the extent of that business. There was evidence sufficient for the judge to find that Takawira was more accurately aware of the extent of the conspiracy than might have been the case with some of his co-accused.

Second, there was evidence that Takawira was himself involved in buying and selling drugs himself.

Overall, while this was a lengthy sentence, we do not to find it to be a sentence properly described as one which is manifestly excessive.

Finally, we consider the submission that more credit should have been afforded to Takawira in respect of the offence of transferring criminal property. The guilty plea was entered at the plea and trial preparation hearing. The starting point taken by the judge was three years' imprisonment. The final sentence passed by the judge was three years' imprisonment. It may be that the judge overlooked in this case the need to reflect credit for the guilty plea on the basis that it would make no difference to the time that Takawira was to serve.

Nevertheless, that credit was due. Accordingly, we allow the appeal to this extent. The sentence on that count will be quashed and replaced with one of two years and three months' imprisonment.

Before we leave the case, we should note that the judge omitted to order that the surcharge should apply in Takawira's case. The Crown Court has purported to add that surcharge administratively. There is, with respect to them, no power in them to do so.

We have not reduced the time that Takawira is to serve in custody, and therefore we do not have power to add the surcharge to his sentence at this stage. In those circumstances, we order that the reference to the surcharge in Takawira's case be deleted from the court record.