Neutral Citation Number: [2017] EWCA Crim 558
Case Nos. 2016/01056/A1, 2016/01402/A1, 2016/01225/A1, 2016/01222/A1 2016/01220/A1, 2016/01214/A1, 2016/01061/A1 & 2016/01059/A1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  29th  March  2017

B e f o r e:
LORD  JUSTICE  DAVIS

MR  JUSTICE  HOLROYDE

and

HIS  HONOUR  JUDGE  KINCH  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

- - - - - - - - - - - - - - - - - - - - -
R E G I N A
 
- v -

MARTIN  FRANCIS  COOPER
JONATHAN  PAUL  FERRY
JAMIE  ALAN  DARBY
ADAM  LEE  HIGGS
PAUL  JAMES  HULL
STUART  ANDREW  FRAZIER
TYRONE  SLY
JAMES  ROBERT  STRAW
- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
A P P E A R A N C E S:

Mr J Lake appeared on behalf of the Appellant Martin Francis Cooper
Mr N Edwards appeared on behalf of the Appellant Jonathan Paul Ferry
Mr M Cranmer-Brown appeared on behalf of the Appellant Jamie Alan Darby
Mr C Milligan appeared on behalf of the Appellant Adam Lee Darby
Mr A Stranex appeared on behalf of the Appellant Paul James Hull
Mr J F Harrison QC appeared on behalf of the Appellant Stuart Andrew Frazier
Mr J Thomas appeared on behalf of the Appellant Tyrone Sly
Mr J Bourne-Arton appeared on behalf of the Appellant James Robert Straw

Mr M Lowe appeared on behalf of the Crown

- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T (Approved)

LORD JUSTICE DAVIS:  I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:
1.  On 8th February 2016, in the Crown Court at Lincoln, His Honour Judge Pini QC (the Honorary Recorder of Lincoln) sentenced thirteen defendants for their respective involvement in serious offences involving the supply of controlled drugs.  Eight of those defendants now appeal against their sentences by leave of the single judge.

2.  The appellants were all charged on an indictment containing four counts.  Each count alleged a conspiracy to supply a controlled drug between 1st January and late October 2014.  The drugs referred to in the charges were: count 1, cocaine (Class A); count 2, methylmethcathinone ("M-cat", Class B), count 3, diamorphine ("heroin", Class A), and count 4, amphetamine (Class B).  

3.  The individual appellants and the sentences against which they appeal are as follows.  Jonathan Paul Ferry, born 11th June 1969 and now aged 47, pleaded guilty at a plea and case management hearing on 20th February 2015 to all four counts.  He received full credit of one-third for those guilty pleas.  He received concurrent sentences of 16 years' imprisonment on counts 1 and 3, and seven years' imprisonment on counts 2 and 4.  Thus, his total sentence was one of 16 years' imprisonment.

4.  Adam Lee Higgs, born 4th March 1991 and now aged 26, pleaded guilty to counts 1 and 3 at the hearing on 20th February 2015.  He, too, received full credit for his pleas.  He was sentenced to concurrent terms of 14 years' imprisonment on each count.

5.  Paul James Hull, born 8th July 1968 and now aged 48, pleaded guilty on 6th October 2015 to counts 1, 2 and 3.  He received credit of 20 per cent for those delayed guilty pleas.  He was sentenced to twelve years' imprisonment on each of counts 1 and 3, and to six years' imprisonment on count 2.  Those sentences were ordered to run concurrently with each other.  Accordingly, his total sentence was twelve years' imprisonment.

6.  James Straw, born 5th February 1965 and now aged 52, pleaded not guilty.  On the first day of his trial, however, he changed his plea to guilty to count 4.  He stood trial on count 3.  Ten weeks later, the jury found him guilty of that offence.  He received a sentence of 16 years' imprisonment on count 3 and a concurrent term of six years' imprisonment on count 4.

7.  Tyrone Sly, born 26th October 1969 and now aged 47, pleaded guilty to counts 3 and 4 at the hearing on 20th February 2015.  He received full credit for his guilty pleas.  He was sentenced to concurrent terms of ten years six months' imprisonment on count 3 and six years' imprisonment on count 4.

8.  Stuart Andrew Frazier, born on 29th July 1961 and now aged 55, pleaded not guilty, but he too was re-arraigned at the start of the trial when he pleaded guilty to counts 1 and 2.  He was given 15 per cent credit for those late guilty pleas.  He was sentenced to concurrent terms of ten years' imprisonment on count 1 and four years six months' imprisonment on count 2.

9.  Jamie Alan Darby, born on 11th April 1976 and now aged 41, was convicted after trial.  He was sentenced to ten years' imprisonment on count 1 and to five years' imprisonment concurrent on count 2.

10.  Finally, Martin Francis Cooper, born 19th October 1984 and now aged 32, pleaded not guilty but changed his plea to guilty to count 1 on day 3 of his trial.  He, too, received 15 per cent credit for his late guilty plea.  He was sentenced to three years six months' imprisonment, which was ordered to run consecutively to a sentence which he was then already serving.

11.  The facts of the case, in outline, were these.  During the ten month period covered by the charges, an organised crime group in Grantham purchased and sold large quantities of controlled drugs.  The Grantham group had two principal sources of supply.  An organised crime gang in Manchester supplied principally cocaine and, to a lesser extent, M-cat.  The head of that group was not before the court.  Three other accused, Anderson, Smith and Moynihan were Mancunian defendants who delivered cocaine and M-cat to the Grantham group.  They are not involved in this appeal.

12.  A separate organised crime group in Nottinghamshire, of which the appellants Straw and Sly were the principals, supplied heroin in wholesale quantities throughout the period of conspiracy.  From August 2014 onwards, they also supplied amphetamine.

13.  The prosecution relied on surveillance evidence and other evidence relating to the use and location of mobile phones and the movements of vehicles. They relied upon evidence relating to a number of specific occasions when conspirators have been arrested.  

14.  On 17th January 2014, Straw drove to Grantham and met Higgs and Cooper.  Straw was later arrested and found to have £6,010 in his possession.  

15.  On 19th June 2014, one of the Manchester group delivered cocaine to a hotel in Grantham, where it was collected by Hull.  Hull was then joined by Cooper and another man, and they used a hotel room to process the delivery.

16.  On 3rd July 2014, Hull travelled to Manchester to meet a member of that group.  He was stopped by the police as he was returning.  He was found to be in possession of just under 1.5 kilograms of cocaine at 13 per cent purity, and also 55 grams of cocaine at 69 per cent purity.  The larger quantity had a wholesale value of £26,400, and a street value of £95,500.  The smaller quantity of higher purity cocaine was valued at £2,400 wholesale, £5,500 retail.

17.  Evidence from a drug expert was that on importation cocaine would generally be at about 60 per cent purity, and that street deals would vary in purity between 6 and 20 per cent.

18.  A mobile phone was seized on this occasion which showed contact between Hull, Ferry and someone in Manchester on that day.  It also showed contact with drug suppliers, including Straw and Sly.

19.  Frazier, who gave evidence at trial, confirmed that there had been a supply of cocaine from another of the Manchester group on 4th July 2014, when the telephone data showed calls between Frazier, Darby, Ferry and Higgs.

20.  On 18th July 2014, Anderson (one of the Manchester group) drove to Darby's address in Grantham, where he was met by Frazier.   He delivered 1.5 kilograms of cocaine at between 11 and 13 per cent purity.  The estimated value was £24,000 wholesale, £90,000 retail. 

21.  When the police raided the house a short time later, they found Darby and Frazier in the act of breaking the cocaine up into one ounce deals.  Police also recovered just under one kilogram of M-cat, with a wholesale value of £3,500 and a retail value of £10,000.  A phone found at the address that had been used by Frazier to direct Anderson to Darby's house bore Ferry's fingerprints and DNA.  Also found were the paraphernalia of drugs supply.  A large quantity of benzocaine (a cutting agent) was later found, which Frazier had stored at another address.    Anderson was stopped as he returned to Manchester.  He was in possession of £26,000.  That cash had been provided by Ferry to Frazier, so that Frazier could pay Anderson for the drugs.

22.  On 28th July 2014, Ferry was seen with Higgs in a car park in Long Bennington.  After an observed telephone call, Sly arrived in a van.  Higgs entered the van and a short time later Higgs was seen with a white carrier bag.

23.  On 4th August 2014, Ferry, Higgs, Straw and Sly met in South Yorkshire.  Four days later, on 8th August, Higgs, Straw and Sly met in Nottinghamshire.  Part-payment was made for a delivery of heroin that was made two days later.  There was telephone contact between Higgs, Ferry, Hull, Straw and Sly.

24.  On 10th August, Straw attended Sly at his home address, where they prepared the heroin for delivery.  Sly then delivered the drugs to Higgs.  Higgs was stopped on the A1 trunk road.  He was in possession of 2.5 kilograms of heroin at 20 per cent purity, with a further 261 grams of heroin at 15 per cent purity.  The wholesale value of the heroin was estimated at £67,000, with a street value of £137,000.

25.  Following his arrest, Higgs was later released.  Less than two hours after his release, he met Ferry, Straw and Sly to discuss the implications of his arrest.  

26.  On 26th September 2014, Straw, Sly, Ferry and Toulson (another defendant) were observed to meet near Sedgebrook.  Ferry was given a bag of amphetamine by Straw and Sly.  The bag was then given to Toulson, who took it to his home in Grantham for processing.

27.  When Toulson's home was searched by the police later that day, they seized a kilogram of amphetamine at a purity level of between 43 and 49 per cent, together with the paraphernalia of drug cutting and supply.  The amphetamine was valued at £13,000 wholesale and £35,000 retail.

28.  Overall, the evidence showed 21 meetings between Straw, Sly, Ferry and Higgs during the period February to September 2014, together with a high volume of telephone traffic between them.

29.  In the light of the observed events, the prosecution case as to the roles played by those of the appellants who were based in Grantham was as follows.  Ferry was the head of the Grantham group.  Higgs was Ferry's right-hand man; he played an active role in both collecting and supplying drugs.  When Hull was arrested partway through the indictment period, Higgs took over his role of collecting heroin.  Frazier assisted Ferry and Higgs; he was involved principally in the storage and preparation for sale of cocaine.  Hull was a courier of significant quantities of heroin and cocaine between the suppliers in Manchester and Nottinghamshire and the Grantham group.  The evidence showed over one thousand mobile phone contacts between himself and Ferry during the indictment period.  Cooper assisted with the cocaine on one occasion after others had been arrested.  Darby took deliveries of cocaine and M-cat on behalf of Ferry and assisted with storage and preparation for sale, again following the arrests of some of the conspirators in July.  

30.  We note, as a potent indication of the scale and level of organisation of these conspiracies, that when individual conspirators were arrested, they were replaced and the operation was able to continue without significant interruption.

31.  Following their arrests, many of the conspirators made no reply when interviewed.  The appellants Straw, Hull, Frazier and Darby did answer questions, but did not tell the truth.

32.  Frazier, as we have said, gave evidence at the trial.  His account of the hierarchy of the Grantham group placed Ferry at the top, with Higgs and Hull.  Frazier said that Higgs dealt with the heroin; Hull dealt with the cocaine.

33.  In his sentencing remarks, the learned judge gave a clear and detailed explanation of his approach to the sentencing exercise and of his reasons for imposing the sentences he did.  He noted that in a police investigation such as had been necessary in this case, there will be only limited opportunities for the police to make arrests and to seize drugs; but evidence may show other occasions when an inference can properly be drawn that additional deliveries of drugs were made.  He said, and this court agrees, that in such circumstances the judge is entitled to come to his own conclusions based of course on evidence as to the quantity of drugs which had been traded.  In this case he said that there was direct evidence as to what was seized on the occasions when arrests were made and that it was inconceivable that the evidence found on the two arrests was wholly exceptional in the context of the conspiracy.  Moreover, it had been accepted by two Mancunian defendants (Smith and Anderson) that they had respectively made seven deliveries and six deliveries of drugs to Grantham.  

34.  The judge then analysed the evidence and the inferences which could properly be drawn.  His conclusions, in summary, were these.  As to counts 1 and 2, the surveillance, telephone and ANPR evidence showed that there were 13 potential deliveries during the indictment period.  The judge had in mind the evidence that on two of those occasions the police had seized about 1.5 kilograms of cocaine.  Anderson had been involved in six deliveries between January and July.  Smith had been involved in seven deliveries between March and July.  In addition, cocaine had been delivered by Smith to the hotel in Grantham on 19th June, where it was collected by Hull.

35.  The judge found that the vast majority, if not all, of the 13 trips involved deliveries of cocaine at significant levels, each of 1.5 kilograms.  That would mean that some 19.5 kilograms of cocaine had been supplied by the Manchester group to Ferry's group during the indictment period.  The judge accepted that the figure may be slightly less than that, and he accepted that some M-Cat had undoubtedly been supplied also.  He noted that the overall purity of the drugs covered by these counts, with the exception of the one package of 55 grams of cocaine at 69 per cent purity, were neither of low nor of high purity. 

36.  As to counts 3 and 4, the judge said that the evidence showed that heroin, and then later amphetamine, had been supplied to the Grantham group by Straw and Sly.  The judge allowed for the fact that those two appellants had supplied amphetamine, as well as heroin.  He calculated that, even if only half of their 21 deliveries had involved heroin, and on the inference that each of those deliveries broadly reflected the quantity known to have been delivered on 10th August, that would mean that over 20 kilograms of heroin had been supplied during the indictment period.

37.  The judge thus concluded that, in all, the Grantham group had received some 40 kilograms of Class A drugs, and, in addition, quantities of amphetamine and M-cat.  Having made those findings, and having made some general observations about his approach to the sentencing exercise, the judge considered the cases of the individual defendants.  He took considerable care to apply the Sentencing Council’s Definitive Guideline on sentencing in drugs cases.  In relation to each defendant in turn, the judge followed through the stepped procedure set out in the guideline, and set out in detail his analysis of culpability and harm.  In relation to each defendant, he decided that it was appropriate to impose concurrent sentences, with the sentence for the most serious offences reflecting the overall criminality of each defendant. 

38.  We, therefore, now turn to consider the individual cases.  We start with the appellant Ferry.  He received the longest sentence.  It is inevitable that a number of the points made in his case were also relied on by other appellants and are capable of having consequences for the appeals of others.  Thus, in reaching our conclusions initially in relation to Ferry, we have taken into account the submissions of all counsel who argued the points of general application.

39.  Ferry has some 56 previous convictions, mainly for offences of violence and dishonesty, but no previous convictions for drugs offending.  The judge found that Ferry had played a leading role as the head of the Grantham group, controlling and directing the conspiracies and buying and selling on a commercial scale.  He had provided all the finance and had obtained substantial financial gain.  He had been able to continue his operation without significant interruption, despite arrests being made.  The judge noted that in the sentencing guideline the indicative quantity for the category 1 starting point in relation to Class A drugs was 5 kilograms in the case of heroin or cocaine.  The guideline also states that where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.  Here, on the judge's findings, the quantities of Class A drugs were in the region of 40 kilograms, together with significant amounts of amphetamine and M-cat.  The harm, therefore, considerably exceeded the category 1 indicative level.  Moreover, the fact that there were four conspiracies was an aggravating feature.  

40.  The judge concluded that the overall starting point for sentence in Ferry's case should be 24 years' imprisonment.  Giving full credit for the early guilty pleas, that meant a total sentence of 16 years.  

41.  It is accepted on Ferry's behalf that he played a leading role.  The grounds of appeal are that the starting point was, nonetheless, too high and the total sentence was manifestly excessive.  Three specific points are made in support of that submission: first, that the judge should not have made the findings he did as to the quantities of drugs which were involved in the conspiracies, in particular because, it is said, the judge could do no more than speculate as to what type and what quantity of drugs had been delivered on any occasion other than those when drugs were seized; secondly, that the judge should not have taken into account the evidence at trial of another defendant to the effect that it was common knowledge in Grantham that Ferry was a drugs dealer; and thirdly, that the judge should have treated the low purity of the drugs as a mitigating factor.

42.  Taking those points in turn, we are unable to accept the first of them.  The judge had presided over a ten week trial of those defendants who had maintained not guilty pleas.  He had the assistance of a detailed prosecution opening for the sentencing hearing, which set out the way the case was put.  In our view, the judge avoided speculation and drew legitimate inferences from the evidence which he accepted.  He was, in our judgment, entitled to make the evidence-based findings he did as to the scale of the drug trafficking.  In particular, he was entitled to find that the occasions of the arrests cannot have been the only occasions when drugs were being trafficked.  He was entitled to reject, as the jury in Straw's case must have done, the innocent explanations which were put forward for the various meetings between the accused.  He clearly took into account the submission that some of the visits might not have involved deliveries of drugs at all, or might have involved deliveries of different drugs.  Overall, in our judgment, the judge was entitled to conclude that the total criminality involved quantities of drugs which took the case above the category 1 range in the sentencing guideline.

43.  As to the second point, in his sentencing remarks the judge said this:

"It is submitted that he [Ferry] has no previous convictions for drugs offences and this was his first venture.  That submission does not sit very well with the evidence of Ferry's reputation in Grantham as an established drug dealer, nor with the efficient way in which these conspiracies were organised and run."

With respect to the judge, we think that that passage was unhappily phrased.  Ferry had no previous convictions for any drugs offence.  It would have been wrong for the judge to increase the sentence on the basis that Ferry had a reputation as an established drugs dealer.  We are not, however, persuaded that the judge did fall into that error. It was accepted that Ferry was the head of the Grantham group.  On any view, he was engaged in running a well-organised criminal operation on a very substantial scale.  On that basis alone, the judge was entitled to conclude that the mitigation to the effect that he had no relevant previous convictions could carry only limited weight in Ferry's case.

44.  As to the third point, the expert evidence permitted the inference that the cocaine and heroin purchased by the Grantham group was already at a level of purity suitable for street sales and was, therefore, unlikely to be adulterated further before onward sale.  The judge accepted that proposition.  He said that some of the drugs seized were of high purity, but the majority were neither high nor low, and that accordingly, "this is not a case where the court is looking at purities at such a high level as to constitute an independent aggravating feature".  It is, however, submitted that the judge should have regarded the drugs as being of low purity, which the sentencing guideline identifies as a factor reducing seriousness.

45.  Developing that submission, counsel pointed out that an arithmetical calculation, taking into account the level of purity of the drugs which were seized, would yield, even on the judge's findings, an overall quantity of about 7 kilograms of Class A drugs at 100 per cent purity.

46.  In our judgment, such an approach is contrary to the sentencing guideline which the court is required to follow, unless satisfied that it would be contrary to the interests of justice to do so.  The guideline clearly indicates that in assessing harm at step 1, quantity is determined by the weight of the product; and for harm category 1, the guideline starting point is based on an "indicative quantity" of 5 kilograms.  Purity of the drugs is not taken into account until step 2.  It can, of course, be highly relevant at that stage of the sentencing exercise.  But as this court made clear in R v Boakye [2012] EWCA Crim 838, [2013] 1 Cr App R(S) 2, the guideline does not proceed, as earlier case law did, on the basis of the quantity of drugs assessed at 100 per cent purity.  Moreover, we cannot accept the proposition that the sentencing guideline mitigating feature of "low purity" should routinely be found when drugs are at a level of purity which is commonly found in street supplies.  We agree that care must be taken, as this court noted in R v Kelly [2014] EWCA Crim 1141, [2014] 2 Cr App R(S) 17, to avoid an anomalous situation in which a drug trafficker lower down the chain of supply is treated as committing a more serious category of offence than his supplier higher up the chain who dealt in a lower weight of the drugs at a much higher level of purity.  But that anomaly will be avoided, because in such a case the high level of purity would inevitably be treated as a serious aggravating feature in the case of the trafficker who was higher up the chain.  In any event, no such anomaly arises here.

47.  We, therefore, reject the individual grounds of appeal advanced on Ferry's behalf.  But we step back and consider whether, in all the circumstances, the starting point of 24 years, and therefore the total sentence of 16 years imposed on Ferry, was, as counsel submits, "far too high".  We are unable to accept that submission.  Counsel realistically accepted that in Ferry's case it could not be said to be wrong in principle for the judge to put him into the category of defendant for whom sentences of 20 years and above may be appropriate.  He also accepted, equally realistically, that the evidence showed that Ferry was known in the area as a drug dealer able and willing to supply a range of drugs.  He submitted, nonetheless, that whilst he might not have been able to argue against a sentence of up to 20 years, the 24 year starting point was simply too high and that this case, serious though it undoubtedly is, did not reach the level of gravity for which such a long sentence would be appropriate.

48.  We bear in mind that Ferry was at the head of a group which, for about ten months, was trafficking Class A and Class B drugs on a very substantial scale.  Drug trafficking is, of course, a type of offence which causes untold misery and leads others into crime.  It is, in our view, a very significant feature that the Grantham group was engaged in supplying a range of different types of drug.  That demonstrates, in our view, the scale of the enterprise, the level of organisation, and the resources of this criminal group.  The clear picture, as it seems to us, is of the group, headed by Ferry, being dominant suppliers in the area in which they operated.  We also bear very much in mind that the judge was in the best position to assess the overall criminality, and it is evident that he approached this difficult sentencing exercise with great care.

49.  In those circumstances, we conclude that the challenge to the starting point in Ferry's case fails.  Certainly, it was a severe sentence.  It may well have been at the top of the range which was properly open to the judge, but we do not accept that it was manifestly excessive in length.

50.  Since Ferry stands at the head of the Grantham group, our conclusion in his case inevitably affects our view as to the sentences passed on other members of that group.  

51.  We turn to the appellant Higgs.  He has previous convictions for violence and disorderly behaviour, but none for drugs offences.  The judge rejected a submission that Higgs had only a significant role and found that he had a leading role but under Ferry's direction.  He described Higgs as being "on the board of directors, but not the managing director", and said that Higgs had played a "hands-on" role.  He was involved with heroin and cocaine in quantities in excess of the indicative quantity for category 1.  That role ended in August 2014, when Higgs was arrested.  The judge accepted that he was now truly sorry for what he had done and was seeking to address his offending behaviour.  Balancing the relevant factors, the judge took a starting point of 21 years before giving full credit for the guilty pleas.

52.  The grounds of appeal raise points similar to those taken on behalf of Ferry as to the overall starting point, the judge's findings as to the quantities of drugs trafficked and the level of purity.  We do not think the submissions in these respects add anything to the arguments we have already considered and our conclusions have been expressed in dealing with Ferry's case.

53.  In addition, it is submitted that Higgs should have been found to have played only a significant role and that there is an unjust disparity between his total sentence of 14 years' imprisonment and the total sentence of 16 years' imprisonment in Straw's case.

54.  As to Higgs' role, the judge took into account two of the factors listed in the sentencing guideline as indicating a leading role, namely, organising, buying and selling on a commercial scale and expectation of substantial financial gain; and one factor indicating a significant role, namely, operational function within a chain.  The guideline states that, in assessing culpability, the sentencer should weigh up all the factors and that, where there are characteristics present which fall under different role categories, the court should balance these characteristics to reach a fair assessment of culpability.  In our judgment, the judge carried out that balancing exercise entirely fairly and was entitled to reach the conclusion he did.  Indeed, it would have been surprising for him to reach any other conclusion, given that the judge described Higgs as being only "slightly subordinate" to Ferry.  Counsel acknowledged the force of the conclusion that Higgs had been involved at all stages of the drug trafficking activity; and, without attaching undue significance to labels such as "right-hand man", we are satisfied that the judge was entitled to view Higgs' role as a leading one.

55.  As to the suggested disparity, we see some force in the submission that there was no clear reason why Higgs' sentence was based on a starting point of 21 years, when Straw, who was also found to have played a leading role and who was a principal supplier of drugs to the Grantham group, received only 16 years after his trial.  The explanation may lie in the fact that Straw was involved only in the supply of heroin, whereas this appellant was involved in trafficking two different Class A drugs.  But, in any event, even if it might be said that Straw was fortunate not to have received a heavier sentence, it would not follow that Higgs' sentence was wrong.  We are, therefore, not persuaded that any disparity point assists Higgs.

56.  Although Higgs has no relevant previous convictions, it is a serious aggravating feature that for much of the time he was engaged in these conspiracies he was either on bail or subject to a community order for unrelated and comparatively minor crimes.  The point is made, with justification, that this was a heavy sentence for a young man who had never before received a custodial sentence.   But we must also take into account the leading role which he played in these very serious crimes.  As we did with Ferry, and as we have done in relation to all the other appellants to whom we will come, we step back to consider the overall position and ask ourselves whether the total sentence in Higgs' case was manifestly excessive.  It was a stiff sentence, but in our judgment it was within the range properly open to the judge; it was not manifestly excessive.  

57.  The appellant Hull has no relevant previous convictions.  The judge found that Hull was a highly trusted courier in close contact with Ferry, Higgs, Straw and Sly.  He was responsible for meeting the cocaine deliveries from Manchester and collecting consignments of heroin from Straw and Sly, before taking them on to whichever address was to be used for processing them.   The judge assessed his role as "extremely significant".  He was involved with cocaine, heroin and M-cat; the indicative quantities of the Class A drugs exceeded the category 1 levels.  Although he had pleaded guilty only a few days before the jury was sworn, Hull had indicated his pleas at an earlier date. The judge allowed a reduction of 20 per cent from an overall starting point of 15 years.  Hull's total sentence was, therefore, 12 years' imprisonment.

58.  The ground of appeal in his case is that the judge failed to take proper account of Hull's individual circumstances, role and length of involvement, and that his sentence was, therefore, manifestly excessive.  Counsel accepts that Hull played a significant role, but points out that it ended in Hull's arrest in early July 2014, three months before the end of the conspiracy, and that there was no evidence of high living or substantial financial benefit.  On the contrary, we are told that little was recovered from Hull on his arrest.  Counsel also points out that when Hull was arrested, he was quickly replaced which, it is suggested, points to Hull being far from an essential participant in the conspiracy.

59.  As to role, the judge noted that in Hull's case, as with Higgs, there were factors indicating a leading role, namely, organising, buying and selling on a commercial scale, and expectation of substantial gain; and factors pointing to a significant role, namely, that he played an operational function and had awareness of the scale of the operation.  We take the judge's use of the phrase "extremely significant" as indicating that a fair assessment of those features placed Hull firmly in the significant category with two of the features indicating that he came close to being placed into the leading category.  In our judgment, the judge was entitled so to conclude.  Hull's role, coupled with the fact that he was involved with three different drugs in quantities exceeding the indicative weights, made a long prison sentence inevitable.  We cannot accept the submission that Hull was "simply a courier", if by that is meant that his role was an insignificant or lowly one.  In all the circumstances of his case, we conclude that Hull's sentence cannot be said to have been manifestly excessive.

60.  The appellants Straw and Sly acted in partnership and played similar roles.  Their grounds of appeal raise similar issues, though part of Sly's case is that he should have been treated as being subordinate to Straw.  It is convenient for us to consider them together.

61.  Each of them had a relevant previous conviction, each having received a substantial prison sentence for supplying drugs in about 2004.  The judge found that over a period of nine months these appellants had supplied about 20 kilograms of heroin from Nottinghamshire to the Grantham group, and that in the latter part of that period they had also supplied amphetamine, a feature which, as the judge rightly said, had to be included in their overall criminality.  They had been in regular contact with Ferry and Higgs.  The judge found that they played leading roles, because in each case they were directing or organising buying and selling on a commercial scale and had substantial links to, and influence on, others in the chain, and had the expectation of substantial financial gain.  He regarded their previous convictions as an aggravating factor in each case.  The judge concluded that the appropriate total sentence to reflect the overall criminality of each of these appellants would be 16 years' imprisonment.  In Sly's case, that sentence would be reduced by one-third because of his guilty pleas. The total sentence in his case was, therefore, ten years six months' imprisonment.  Straw, however, had contested count 3.  The total sentence, in his case, accordingly, was 16 years' imprisonment.

62.  The grounds of appeal advanced by these two appellants challenge the judge's findings as to role and as to the quantity of drugs trafficked.  In relation to the latter point, it is argued that in his sentencing remarks the judge indicated that he had inferred the supply of large quantities both of heroin and of amphetamine.  Counsel argue that that feature demonstrates that there was no safe basis on which the judge could properly infer that any particular delivery or other activity involved the supply of one drug rather than the other.

63.  We reject the submissions made as to role.  The evidence pointed to these two appellants being partners in a substantial business of supplying drugs.  We can see no merit in the contention that they played only significant roles.  They had the resources and the ability to purchase drugs in substantial quantities for onward sale to the Grantham group.  We reject also the submission made on behalf of Sly that a distinction can and should be drawn between the two men, with Sly being regarded as subordinate to Straw.  The judge, in our view, was entitled to treat them as equally involved, albeit that they sometimes undertook different aspects of their business.

64.  As to the quantity of drugs, we have already noted that the judge was entitled to make the findings he did in relation to the quantity of heroin for the reasons which he gave, and was therefore entitled to regard the overall criminality as involving a quantity of heroin well in excess of the indicative quantity in the sentencing guideline.  We do, however, accept that it is unfortunate that the judge, in his otherwise comprehensive sentencing remarks, failed to give any clear explanations of his reasons for taking a starting point of nine years in respect of the amphetamine offence.  In our view, in the absence of any clear explanation of the judge's reasons for reaching that conclusion, the sentences on count 4 should be reduced.

65.  In relation to both these appellants, we conclude that their total sentences cannot be said to be manifestly excessive.  Indeed, they might have been sentenced rather more heavily than they were.  We will allow their appeals only to the very limited extent that in each case we will reduce the sentence on count 4 to one of two years' imprisonment.  That variation will not, of course, affect their total sentences.

66.  The appellant Frazier has previous convictions which, although long ago, cannot be left out of account.  In 1981, he was convicted of murder and was therefore subject to the terms of his life licence at all material times in this case.  In 1999, he was sentenced to a total of nine years' imprisonment for supplying cocaine, crack cocaine and MDMA.  The judge summarised Frazier's role as being a member of the Grantham group who became involved after the arrest of Hull in early July, and on two occasions, 4th and 18th July 2014, had been involved in receiving and processing cocaine.  The latter occasion had also involved what appears to have been an unexpected delivery of M-cat.  Frazier had been arrested, as we have said, in the act of bagging 1.5 kilograms of cocaine, with a retail value of £90,000.  He accepted that he had recruited Darby to the conspiracy.  

67.  Rejecting a submission that he could be regarded as playing a lesser role, the judge concluded that Frazier had played a significant role.  He said, rightly, that the starting point in Frazier's case had to reflect the overall criminality, taking into account the M-cat offence and the aggravating feature of the previous convictions.  On the other hand, he also took into account that Frazier's active participation was limited to the two occasions we have mentioned.  Having regard to the total weight of heroin involved on those two occasions – 3 kilograms, as opposed to the indicative weight of 5 kilograms in the sentencing guideline – the judge concluded that the appropriate overall starting point was twelve years' imprisonment.  He allowed credit of 15 per cent for the late guilty pleas, and rounded down the resultant figures in the appellant's favour.  Thus, the total sentence was one of ten years' imprisonment.

68.  The grounds of appeal are that the judge took too high a starting point; that the weight of the drugs with which he was involved did not bring him into category 1 of the sentencing guideline; that insufficient importance was given to the limited nature of his role; and that the sentence was, accordingly, manifestly excessive.

69.  We cannot accept these submissions.  As is now conceded, the judge was clearly entitled to find that this appellant played a significant role.  The judge was correct to have regard to the fact that this appellant's culpability, as with others, lay in his involvement in the conspiracies, not merely in his specific acts.  This court has made clear on many occasions that those who are party to a conspiracy are part of the wider course of criminal activity which that conspiracy entails, and they agree to the commission of crime by other conspirators.  In any event, the 3 kilograms of heroin with which the appellant was directly involved is three times the indicative amount for a category 2 offence and justifies placing the case into category 1.  In all the circumstances of Frazier's case, we conclude that there is no ground on which his sentence can be said to be manifestly excessive.

70.  The appellant Darby has no recent or relevant previous convictions.  He was recruited by Frazier to provide premises on 4th and 18th July, and to help with weighing and bagging the cocaine on those occasions for limited financial reward.  The appellant, who did not give evidence, contested the case on the basis that he was involved on only one day, and only because he was intimidated by Frazier, of whose murder conviction he was aware, and reluctantly agreed to do what Frazier wanted him to do.  The judge was, nonetheless, satisfied by the evidence, including parts of Frazier's evidence which he accepted as reliable, that Darby had been involved on two days, though had only received modest reward.  The judge accepted that there were features both of a significant role and of a lesser role, but took an overall starting point of ten years to reflect the overall criminality.  There was, of course, no reduction for any guilty plea, as Darby was convicted after a trial.

71.  In his closing speech, whilst putting the case primarily on the basis that this appellant was more extensively involved than he had admitted, prosecuting counsel had suggested to the jury that the appellant was guilty of the offence charged, even on his own account.  In summing up, the judge directed the jury to the effect that they would be entitled to convict on that basis.  The defence had, earlier in the proceedings, invited the prosecution to add a count to the indictment which would enable the jury to return a verdict which would specifically indicate the basis of any conviction, but the prosecution had declined to do so.  The written grounds of appeal contended that, in those circumstances, the judge was obliged to sentence Darby on the least serious basis, that is to say, on the basis of his admitted reluctant involvement on one occasion.  It was also argued that the judge could not properly accept those parts of Frazier's evidence which implicated this appellant.  

72. Sensibly, counsel no longer pursues those particular submissions.  The prosecution were not obliged to amend the indictment in the way suggested, and it would, arguably, have been improper for them to do so.  The judge had properly directed the jury as to possible routes to their verdicts, and, following conviction, it was for him to determine the factual basis of the sentence.  In making that determination, he was entitled to accept parts of Frazier's evidence, notwithstanding that there were obvious reasons why Frazier had interests of his own to serve.  The judge was clearly alive to the need to approach Frazier's evidence with caution, and he gave sound reasons for accepting parts of it.

73.  Counsel has, realistically, focused his submissions on points in which we see more force, namely, that the judge should have regarded Darby's role as being, at most, on the borderline between significant and lesser, and that the judge should have given greater weight to the personal mitigation which was available to Darby.  We do not think it necessary to go into the details of that personal mitigation, but we note in summary that the appellant's mental health problems and his childcare responsibilities.  Moreover, we note that, in the circumstances of Darby's individual case, the fact that his involvement related to two types of drug is of lesser significance than in the cases of other appellants.

74.  We are persuaded that the factors which counsel has identified are factors which should have led the judge to impose a shorter total sentence than he did.  In our judgment, in all the circumstances of Darby's case, the appropriate sentence was one of six years' imprisonment.

75.  Finally, we turn to the appellant Cooper.  Prior to 2014 he had a number of previous convictions, but they were neither recent nor relevant, and he had very little experience of custody.  However, on 15th July 2014, for offences of conspiracy to supply cocaine and possession with intent to supply cocaine, he was sentenced to a total of 15 years' imprisonment.  He was serving that sentence when convicted on count 1 of this indictment.  Importantly, he was actually standing trial for the earlier offence when he committed this offence.

76.  The judge found that Cooper played a lesser role under direction from Hull.  There were, however, elements of a significant role.  In particular, his motivation by financial advantage, and the fact that he had involved another defendant (a man called Gill).  It was a serious aggravating feature that Cooper had committed this offence in the course of his trial for the earlier matter.

77.  The judge took a starting point of seven years, being the top of the range for a lesser role in a category 2 offence because of the aggravating features.  He generously allowed credit of 15 per cent for the guilty plea entered on the third day of the trial.  He took account of the favourable reports received from the prison.  He then made a substantial reduction for totality because he would be imposing a sentence to run consecutively to the sentence already being served.  On that ground, he reduced what he said would otherwise have been a sentence of six years' imprisonment to one of three years six months' imprisonment, to run consecutively to the earlier sentence.  

78.  The grounds of appeal focus, realistically, on the issue of totality.  We have considered counsel's submissions, but we are not persuaded by them.  The commission of this offence whilst on trial for an earlier, similar offence, was a grave aggravating feature.  In our view, the appellant could not realistically have expected to receive any more substantial reduction than he did on the ground of totality.  Had he been sentenced on one occasion for all offences, both the earlier offending and this more recent offence, we do not accept the submission that he would have received a total sentence of less than 18 years six months' imprisonment.  In his case, accordingly, we conclude that the total sentence cannot be said to be manifestly excessive.

79.  We are grateful to all counsel for the assistance they have given the court by their written and oral submissions.  In the result, our conclusions can be summarised as follows.  In the cases of the appellants Sly and Straw, the sentences of six years' imprisonment on count 4 will be quashed.  In each case a sentence of two years' imprisonment will be substituted, to run concurrently with the longer sentences on count 3.

80.  In the case of Darby, we quash the concurrent sentences of ten years and five years' imprisonment imposed below.  We substitute for them concurrent sentences of six years' imprisonment on count 1 and two years' imprisonment on count 2.

81.  With those exceptions, all these appeals fail and are dismissed.

____________________________________________