R v Eimantas Gaidamavicias & Anor

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

The two appellants each pleaded guilty to four counts of conspiracy to supply Class A drugs (cocaine, heroin, MDMA and magic mushrooms). They also pleaded guilty to two counts of conspiracy to supply Class B drugs (cannabis and ketamine) and one count of conspiracy to supply a Class C drug (Alprazolam). The appellant Gaidamavicias further pleaded guilty to one count of conspiracy to supply a psychoactive substance (nitrous oxide) and one count of conspiracy to evade the prohibition on the importation of drugs (cannabis).

In respect of each appellant the judge passed a sentence on count 1 (conspiracy to supply cocaine) which was designed to reflect that appellant's overall culpability. He then passed shorter concurrent sentences on all other counts. The sentence imposed on count 1 on Gaidamavicias was one of 16 years' imprisonment; and that imposed upon Mphande, 14 years' imprisonment.

The two appellants were involved in a conspiracy to supply drugs which was formed on or about 1 November 2020 and continued until 20 October 2023. They were the only participants in the enterprise. They supplied drugs on a commercial basis. They had business cards prepared to advertise their services and ran a number of dedicated drug dealing telephone lines. Messages were recovered during the course of the investigation which revealed that the appellants were each able to speak in expert terms about the supply of large quantities of drugs. It was also obvious from the messaging that they were able to source Class A drugs from a number of different suppliers. At times it is clear that they were able to source cocaine, heroin, MDMA and cannabis in amounts measured in kilos. The appellant Mphande told one of his customers that he was able to buy a kilo of cocaine for £27,000, and said that he could source kilos of cannabis at short notice from Southampton. They supplied those drugs onto their customers in both small and large amounts.

It was further clear that some of the cannabis that was the subject matter of the conspiracy came from America. This can be inferred from the fact that the appellants collected the consignment from Stansted Airport, the drugs were purchased in imperial weights (weights by which drugs are traded in America, but not generally in the United Kingdom or Europe), and the drugs were referred to as having been made in "Cali" (short for California).

Twice during the course of the investigation the appellants were arrested, interviewed and made no comment. Each time they were bailed or released pending further investigation. On each occasion they continued to run their business using fresh business cards and new telephone numbers. After each arrest the business was up and running again within hours or a few days.

The first of those arrests took place on 18 November 2022. The police stopped an Astra motor vehicle with the appellants inside. They were in possession of 4.36 grams of cocaine sorted into street dealing wraps, business cards, a quantity of cannabis, several mobile phones and cash.

At the time of that arrest, Guidamavicias was the tenant of a flat in Nottingham. The flat was student accommodation. The occupants of the other student flats in the block were targeted for the sale of drugs. When this flat was searched, the police found over 27 grams of cocaine at 86 per cent purity. That is very close to or at the normal importation strength of cocaine, and thus indicated that the appellants obtained the drug either from the importers or shortly after its arrival into the country and before it had been significantly cut for onward sale.

The police also found 5.5 grams of crack cocaine, 179 MDMA tablets, 38.67 grams of MDMA powder, approximately three quarters of a kilogram of cannabis, over 775 Diazepam and Alprazolam tablets and 284 grams of ketamine.

The second set of arrests occurred on 13 May 2023. The appellants were stopped in a BMW car. Between them they had over £1,000 in cash and a number of iPhones. They also had approximately 250 grams of cocaine at 83 per cent purity, and half a kilogram of cannabis.

Keys in the possession of Mphande on that occasion were found to fit the door to another apartment in Nottingham. Inside that flat the police found 31 pairs of training shoes and a significant quantity of branded clothing, along with mobile phones, business cards, cash, drug paraphernalia and the keys to a Toyota Yaris motor car. That car was searched. Inside were found business cards, a quarter of a kilo of cocaine and half a kilo of cannabis.

The conspiracy finally concluded when the appellants were arrested for the third time, on 19 October 2023. On this occasion they again had a number of mobile telephones in their possession, as well as 136 grams of cannabis, which was concealed in a bag specifically designed to hide its odour. A further one kilogram of cannabis was also recovered from them at the time of that arerst.

As to their respective roles, there was some evidence that at times, Gaidamavicias was directing Mphande as to things. However, there was evidence that at other times Mphande was dealing directly with the suppliers to the conspiracy and those who were downstream from him.

Each of the appellants was in his mid 20s. Neither had previous convictions.

The judge found that each of the appellants had a leading role in the conspiracy. He did not differentiate between them as far as their culpability was concerned. He inferred that the conspiracy to supply cocaine alone had involved the supply of more than five kilograms of the drug, and he therefore placed this conspiracy within category 1 of the Sentencing Council's definitive guideline. The starting point was therefore one of 14 years' custody, and the category range between 12 and 16 years.

In each case the judge moved up from the starting point to 15 years' custody, to reflect aggravating features. He noted that the appellants did not stop trading in drugs after their earlier arrests; that the cocaine was of particularly high purity; that the motivation for the offending was greed; and that they targeted students as potential purchasers.

The judge then applied a one third discount to reduce the sentence to ten years' custody. He then moved up from that point to 14 years in the case of Mphande and 16 years in the case of Guidamavicias in order to reflect their overall offending. In doing that, he noted the number of different drugs that they were able to supply and the quantity of drugs that were recovered during the course of the investigation. The upward movement in the case of Gaidamavicias was greater than that for Mphande because his sentence had to reflect the importation of the cannabis in which Mphande was not provably involved.

The grounds of appeal are now advanced in the same way on behalf of each appellant. It is said that the judge erred in applying the guilty plea discount before increasing the sentence in order to reflect the appellants' overall criminality. What he should have done, it is submitted, is to have increased the sentence in order to reflect the total criminality and then to have imposed the guilty plea discount.

The judge was certainly entitled to find that each of the appellants played a leading role in the conspiracy. There was evidence that each was involved in the sourcing of substantial quantities of drug; that each had a full understanding of the scale of the conspiracies in which he was involved; and that each was set to profit significantly from those activities.

Nor can the judge be criticised for failing to differentiate between the roles of the two appellants, other than to reflect the added criminality of Gaidamavicias in importing cannabis.

It is not now contended on behalf of either of the appellants that the judge could not place the offending in relation to the cocaine into category 1. It was also conceded that he was entitled to find that at least five kilograms of that drug must have been supplied whilst the conspiracy was in operation.

It therefore follows, in our view, that it is unarguable that the judge was wrong to take 14 years as the appropriate starting point for the cocaine offence and then move up to 15 years to reflect the many aggravating features that we have identified, notwithstanding that the appellants were men of previous good character.

The judge was also duty bound to increase each of the appellant's sentences significantly in order to ensure that the sentence on count 1 reflected the totality of that appellant's criminality and not just his role in supplying cocaine. Again, we find no fault in the judge's conclusion that, had their been trials, it would have been proportionate to reflect that in Gaidamavicias' case by increasing the sentence by six years and in Mphande's case by increasing it by four years. There were a number of different drugs that were to be supplied and the appellants were in possession of and were supplying significant amounts of each of them.

However, in applying those uplifts after the reduction for the guilty plea was made, the judge contrived a situation by which no credit was given for the guilty pleas to those offences. We have concluded that the proper way to have approached this case would have been to apply the uplift to count 1 to reflect the totality of the offending before the guilty plea discount was applied. Applying the uplift after applying the guilty plea discount had resulted in sentences which, in our judgement, are manifestly excessive

Accordingly, we intend to allow these appeals to reflect this. We intend to quash both of the sentences on count 1 and replace them with a sentence of 14 years' imprisonment in the case of Gaidamavicias and in the case of Mphande a sentence of 12 years and eight months' imprisonment. These will then become the overall custodial terms on the appellants. The other shorter concurrent sentences will remain unaltered. To that extent these appeals are allowed.