Conspiracy – Counts – Sentence length – Supply of drugs

R v David Sangster: R v Robert Burnell: R v Martyn Leslie Jackson: CA (Crim Div) (Lord Justice Maurice Kay, Mr Justice Sweeney, Mr Justice Slade): 2 December 2009

The appellants (S, B and J) appealed against their sentences for drug offences.

The appellants had been part of a conspiracy to supply drugs. B, the second-in-command to the lead conspirator, was sentenced to eight years’ imprisonment for conspiracy to supply class B drugs and four years’ imprisonment consecutive for conspiracy to supply class C drugs, making a total of 12 years. He had no previous convictions and received a credit of 10% for guilty pleas on the first day of the trial. S was involved as a courier and was sentenced to 10 years’ imprisonment for conspiracy to supply class A drugs. He had three previous convictions relating to drugs and received a credit of 10% for his guilty plea on the day of the trial. J was also a courier and received a total sentence of eight-and-a-half-years’ imprisonment. He was sentenced to eight years for possession of class A drugs with intent to supply, concurrent with three years for possession of class B drugs with intent to supply and six months consecutive for breach of a suspended sentence. He had a large number of previous convictions for various offences, including drug offences. B argued that the judge should have acknowledged that in reality there was a single conspiracy and that, although indicted in separate counts, it ought to have attracted concurrent sentences. S argued that his sentence was manifestly excessive given his subordinate role.

Held: (1) Although in many cases of supplying drugs two or more offences would be charged in relation to a single transaction, and it could be said that the separate offences were simply a consequence of the different classifications of the drugs supplied, in the instant case it could not be said that there was a single conspiracy that was subdivided only for pleading purposes. The charging of separate conspiracies was the best way of describing and encapsulating the criminality of a going concern that operated for a considerable period of time and embraced the supply of class B and class C drugs on an enormous scale. The two drugs were not only classified differently, but the conspiracies relating to them inevitably involved differences in activity. In those circumstances, the judge was not bound to proceed on the basis that the two counts were manifestations of a single conspiracy that could not attract a total sentence in excess of the maximum for a single offence, namely 14 years. Nor was the judge bound to pass concurrent sentences, although it was clear that he did keep in mind the principle of totality. It followed that the sentences were consistent with the guidelines, and although the starting point of around 13 years’ imprisonment was severe, it was not impermissibly so.

(2) With regard to S’s role in the conspiracy and his personal history, the judge had correctly adopted a permissible starting point of approximately 11 years’ imprisonment. Where the weight of class A drugs at 100% purity was 500g or more, sentences of 10 years and upwards were appropriate, and where the weight was 5kg or more, sentences of 14 years and upwards were appropriate, R v Aranguren (Jose de Jesus) [1994] 99 Cr App R 347 CA (Crim Div) followed. The 100% purity weight in the instant case was 1.4kg, almost three times the 500g threshold but well below the 5kg upper threshold. The judge concentrated on the volume of the drug, the sophistication of the operation and on S’s previous convictions. His approach could not be faulted and he was faithful to the guidelines.

(3) The judge had correctly described J’s role, and the primary sentence of eight years’ imprisonment was not manifestly excessive as a reflection of the criminality. Nor could J have any complaint about the consecutive sentence.

Appeals dismissed.

Nicholas Valios QC for the first appellant; Michael Bromley-Martin QC for the second appellant; Karl Williams for the third appellant; Quinn Hawkins for the Crown.