Imprisonment - Length of sentence - Conspiracy to supply drugs

R v Kotecha; R v Kotecha; R v Kakkad; R v Suvania: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mr Justice Wilkie, Mr Justice Holroyde): 6 September 2011

Four appeals were heard together. The defendants were found to have taken part in a conspiracy to supply drugs between 1 November and 12 December 2009. On 4 November, M, a lorry driver, was stopped on entry to the United Kingdom and found to be in possession of a consignment of 7.8 kilograms of cocaine.

The consignment was found to have been due to the defendants in the first and second appeal (the first and second defendants respectively). The second defendant and the defendant in the third appeal (the third defendant) subsequently travelled to Europe to re-negotiate the consignment. The defendant in the fourth appeal (the fourth defendant) also travelled abroad for 24 hours to ensure that the consignment was on its way.

The first and second defendants were brothers and shared a home with their wives. The defendant in the third case (the third defendant) sublet a house from the fourth defendant. On 11 December, police raided both properties. At the home of the first and second defendants they found various items associated with the supply of drugs, including a multivac machine used for wrapping drugs and a benzocaine which was used for cutting cocaine, as well as a quantity of drugs.

At the other property, they found 7 kilograms of cocaine worth £3m, 18 bars of cannabis worth £18,000, 68 kilograms of cannabis worth £500,000, 1.76 kilograms of amphetamine worth £18,000 and pills worth £20,900. The defendants were charged with three offences: conspiracy to supply Class A drugs, namely cocaine (count one); conspiracy to supply Class B drugs, namely cannabis (count two); and conspiracy to supply Class B drugs, namely amphetamine (count three). In December 2010, the first defendant pleaded guilty to all offences on re-arraignment.

In March 2011, the second and third defendants were convicted on all three counts. The fourth defendant was convicted on counts one and two but found not guilty on count three. The judge found that the drugs which had been seized at the two properties were not the only drugs which the defendants were dealing in.

The drugs seized from M were also part of the conspiracy and references to further substantial quantities of drugs had been found at the home of the first and second defendants. The quantity of cocaine involved was found to be at least 14 kilograms and possibly as much as 21 kilograms. The first defendant was found to be the ring-leader of the conspiracy. It was held that a sentence of 24 years’ imprisonment would have been appropriate had the case been contested.

He was given a credit of 25% for his guilty plea and sentenced to 15 years’ imprisonment in respect of count one, three years’ imprisonment in respect of count two and three years’ imprisonment in respect to count three. The second defendant was found to be his brother’s 'right-hand man' and had played a full part in the conspiracy.

He was sentenced to 18 years’ imprisonment in respect of count one, 3 years’ imprisonment in respect of count two and three years imprisonment in respect of count three. The judge found that there was no reason to distinguish the case of the third defendant from that of the second defendant. His fingerprints had been found on drug packaging and he had travelled with the second defendant to Europe to arrange the consignment of drugs.

According, the third defendant was given the same sentence as the second. It was accepted that the fourth defendant had played a somewhat lesser role in the conspiracy and he was sentenced to 16 years’ imprisonment in respect of count one and two years’ imprisonment in respect of count two. In each case the sentence in respect of count two was to run consecutively with count one and the time which they had spent on remand was deducted from their total sentences.

In the case of the first three defendants, their sentences in respect of count three were to run consecutively with the other sentences. All four defendants appealed against their sentences.

It was common ground between the defendants that the starting point of 24 years adopted by the judge had been too high by reference to the facts of the case. It was submitted that a distinction was to be drawn between conspiracies involving very large quantities of drugs, such as those in the instant case, and those which involved massive quantities of drugs. Further, it was submitted that the judge had been wrong to impose a consecutive sentence in respect of count two.

The third defendant submitted that insufficient account had been taken of his role. He submitted that his role had been disparate in centrality to the conspiracy to that of the second defendant. Accordingly, he should not have received the same sentence as the second defendant but should have been sentenced at a level similar to that of the fourth defendant. The fourth defendant submitted that the judge had overstated his role in the conspiracy.

The court held: In the instant case there had been no basis to criticise the judge for imposing consecutive sentences in respect of count two in order to achieve total sentences reflecting, in the judge’s view, the overall criminality of the defendants. The judge could have passed concurrent sentences at a higher level in respect of count one in order to achieve the same end but had chosen to do so by imposing consecutive sentences. There had been no reason to criticise that approach.

In the circumstances, the starting point of 24 years had been too high. The appropriate starting point was 20 years. Although certain points of difference between the roles of the third defendant and the second defendant had been brought to the attention of the court, they had fallen far short of demonstrating that the judge, who had conducted the trial and heard evidence from the third defendant, had been wrong either in principle or that he had imposed a manifestly excessive sentence.

Similarly, the court was not in a position to second guess the judge as to just how far below the level of the other defendants, the involvement of the fourth defendant had been.

The sentence of the first defendant in respect of count one would be quashed and substituted with a sentence of 12 years. The sentences of the second and third defendants in respect of count one would be quashed and substituted with sentences of 14 years.

The sentence of the fourth defendant in respect of count one would be quashed and substituted with a sentence of 12 years. The sentences in respect of counts two and three would remain, as would the directions regarding the time spent on remand.   

B Bhatia (assigned by the Registrar of Criminal Appeals) for the first defendant. L Soertsz (assigned by the Registrar of Criminal Appeals) for the second defendant. D Johashen (assigned by the Registrar of Criminal Appeals) for the third defendant. H James (assigned by the Registrar of Criminal Appeals) for the fourth defendant.