No. 2008/05325/A1

Neutral Citation Number: [2009] EWCA Crim 1123

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  3  February  2009

B e f o r e:

LADY  JUSTICE  HALLETT  DBE
MR  JUSTICE  RODERICK  EVANS

and

MR  JUSTICE  WALKER
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ATTORNEY GENERAL'S REFERENCE No. 61 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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ANDREW  CRAIG  BURNS
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Mr D Penny appeared on behalf of the Attorney General
Mr R Harrison appeared on behalf of the Offender
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J U D G M E N T
Tuesday  3  February  2009

LADY JUSTICE HALLETT:    
1.  The offender is aged 37 and of previous excellent character.  On 9 September 2008, following a seven day trial, he was convicted of conspiring with another or others unknown to evade by fraud the prohibition on the importation of a controlled drug of Class A.  The drug was cocaine.  It was contained within 32.31kg of powder.  The offender wishes to appeal against his conviction, but his application for leave has yet to be determined by the single judge.  Mr Harrison, who appears on behalf of the offender, applied for an adjournment.  We refused that application.  We are concerned solely, therefore, with the sentence of eight years' imprisonment imposed by the trial judge.

2.  Her Majesty's Attorney General, represented today by Mr Penny, applies under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review the sentence on the ground that it is unduly lenient.  We grant leave.

3.  The facts are as follows.  The offender lived in Cambridgeshire at the time of the offence.  He had been employed as a Senior Supervisor at the DHL Parcel Distribution Centre in Cambridge for ten years.  DHL were the unwitting carriers of the drugs. The Crown's case at trial was that it was necessary for at least one of the importers to have considerable knowledge of the DHL delivery system in the United Kingdom and elsewhere so as to enable them to intercept the drugs in transit.

4.  On 3 November 2007 two cardboard boxes arrived at Gatwick Airport from South America in a DHL shipment, originating from the DHL hub in Venezuela.  The consignee details related to a company in Peterborough.  They knew nothing of the delivery.  The boxes were marked for transit through to the Cambridge depot.  The DHL manifest relating to the shipment showed no consignor or consignee details.  Inside each box were three tape-wrapped packages.  They contained powder in compressed block form with a cocaine content varying between 55 and 80 per cent purity.  The total mass of 100 per cent cocaine contained within the consignment was just over 19kg.  Customs officers removed the cocaine, substituted an innocuous white powder and sent the packages on their way.  Before doing so, however, they took the precaution of inserting audio recording equipment.

5.  The boxes were then delivered to the DHL Cambridge depot, where the offender was working at 7.05am on 6 November 2007.  He arrived particularly early for his shift that day. He was not due to start work until noon.

6.  A DHL courier, Trevor Chapman, ignorant of their contents, sorted the two dummy boxes for delivery during his round that day.  At about 8.30am the offender approached Mr Chapman and told him that the boxes should be removed because they had to be returned to the central hub at the East Midlands Airport.  The driver, trusting his supervisor, helped him carry the boxes onto a trolley to await despatch to East Midlands.

7.  At 8.43am the covert device recorded the sounds of the trolley being moved, apparently leaving the depot building and the consignment being placed into a vehicle.  During this part of the recording the voice of a male can be heard speaking as the male kept pace with the trolley.  The male had a Scots accent.  An expert analysed the recording.  In his opinion the voice was in all respects consistent with the voice of the offender.  It should also be noted that the offender was only one of two people employed at DHL who had a Scots accent.  The Crown took the precaution of calling the other during the trial.

8.  No sound or movement was heard on the recording for some hours.  Then shortly before 1pm the recording contained sounds of someone entering the vehicle and starting it up.  It drove for about one minute, stopped, and the boxes were unloaded at 1.03pm and apparently handed on to other people.  During the handover period (at 1.02pm) the man with the Scots accent can be heard answering an incoming call and saying to the caller that he would call them back in a few minutes.  At trial the offender was forced to concede that he, too, had left the depot at about one o'clock and that shortly afterwards he had received a call from a member of his family which lasted but a few seconds because he told her that he would call her back.

9.  Officers who carried out the surveillance could not see the handover of the drugs.  However, they saw two vehicles, apparently travelling in convoy, leaving the area of the industrial estate where the handover took place.  The drivers of the two vehicles engaged in anti-surveillance tactics and they managed to lose their pursuers.  

10.  The offender was due to start work at 4pm that day.  At about that time another supervisor, with a courier, was looking for the now missing parcels.  The offender lied to them.  He said that he had taken a telephone call to pull the parcels and put them at the side of the depot.  Records indicated that no such telephone call had been received.

11.  The offender was arrested at work at 5.06pm.  In interview he insisted that he had received the call purportedly from the East Midlands main depot telling him that the packages had to be retrieved and returned to the East Midlands.  He admitted that he left the depot, drove for about a minute and that he went to the Tesco store.  

12.  Her Majesty's Attorney General points to the following aggravating features.  The importation involved a very large quantity of Class A drugs.  The packaging, the constituents, the purity and the place of origin indicated that it came directly from the source of production.  The 19.156kg had a wholesale value of £1.4 million and a potential street level value of £2.8 million.  The importation was a sophisticated attempt at remote importation into the United Kingdom by the unwitting agency of an international commercial company, involving detailed "inside" knowledge of its international and United Kingdom operations, the targeted use of an innocent consignee and the evident co-operation of a number of unidentified individuals in the United Kingdom and South America.

13.  Mr Harrison accepted, as he must, that there was a degree of sophistication on the part of the organisers of the importation, but submitted that there was nothing here over and above what was to be expected of such a large-scale operation.

14.  Mr Penny relied next on the role of the offender which he described as an important one.  He was a trusted DHL employee, with access to information concerning the United Kingdom and the overseas operation of the company.  He was relied upon to intervene, retrieve, hold and pass on the drugs to those who would cut and then supply them.  He was therefore their direct recipient in the United Kingdom.  The offender's role was significant and in breach of the trust placed in him by his employers for whom he occupied a position of responsibility.

15.  Mr Harrison countered with the assertion that no breach of trust was here involved in the sense that there was no breach of trust in relation to anyone who suffered or could have suffered as a result of the offence.  Mr Harrison insisted that the offender's role was a subordinate one and not therefore an aggravating feature.

16.  Her Majesty's Attorney General accepted that there were a number of mitigating features.  First, the offender was not himself involved in the onward distribution and supply network and was not obviously a prime mover.  Second, there was no evidence upon which it could be said that he knew with precision the quantity of drugs involved, although the offender had taken possession of the boxes and handled them and was in a position to appreciate their approximate size and weight.  It was this feature which Mr Harrison described as of paramount importance.  He pointed out that the offender did not know and could not know that the parcels contained drugs of any particular class or description.  Third, it was accepted that there was no evidence that the offender had received any reward in advance, although it is said that the offender must have acted in the expectation of a considerable reward.  Fourth, it was accepted that the offender had no previous convictions and was of positive good character.  Mr Harrison has placed considerable emphasis upon the excellence of the offender's previous character and referred to his service within the community.  

17.  Her Majesty's Attorney General argued that the sentence imposed failed to reflect the gravity of the offence.  Whatever the personal mitigation, which sadly is not an uncommon feature of those recruited by drugs barons to play their part in this wicked trade, a sentence in the region of 15 to 16 years was required in accordance with the appropriate guidelines.  On that basis Mr Penny argued that the sentence was unduly lenient.  It failed to mark the gravity of the offending and the need to protect the public from harm and it failed to reflect public concern about cases of this kind.  He drew to our attention a number of decisions of this court, in particular R v Aramah 76 Cr App R 190 and R v Aroyewumi and Aranguren (1995) 16 Cr App R(S) 211.  Unfortunately, at the Crown Court the sentencing judge made reference only to the case of Aramah.  Nobody seems to have observed that Aramah had been updated in Aroyewumi. 

18.  Mr Harrison sought to distinguish the facts of the present case from the guideline cases on the basis that the offender did not know what was being imported.  He suggested this what the trial judge found as a fact.  In any event he reminded the court that sentencing is not a mechanistic process whereby a judge simply ticks the relevant box.  He argued that if the guidelines did apply, the judge was entitled to depart from them given the personal mitigation which included the offender's considerable service in the community, his limited role (as Mr Harrison would have it), and his ignorance of what was actually imported.  He also observed that there was no evidence that the offender received any reward.  Thus the focus of Mr Harrison's submissions was on the fact that the Crown could not establish with any degree of certainty the offender's knowledge.  Mr Penny pointed out that this was not a matter that the Crown had to prove.  In any event, to our mind that line of argument, if it takes the offender anywhere, takes him not very far.  The reason the offender could claim ignorance of the nature or exact quantity of the drugs (if he was truly ignorant) would be because he did not ask any questions.  Plainly he was not ignorant as to the possible quantity because he handled the boxes concerned and they contained over 32kg of powder.

19.  The offender stood to be sentenced on the basis that he was prepared to lend himself to an importation which for all he knew could have contained a considerably larger quantity of Class A drugs.  There can be no doubt that he knew that he was involving himself in a very serious criminal offence.  He knew that the parcels were coming from South America, a well-established source of Class A drugs.  He must have known that considerable planning had gone into the importation and he was prepared to play his full part.  The only reason he did not receive any reward (if that is the case) is because he was caught virtually red-handed.  

20.  To our mind the offender's role was not a limited one, as Mr Harrison argued.  It was a very significant one indeed.  This importation could not work without his specialist knowledge and without his intervention.  We shall not waste time on a sterile discussion of whether this is technically a breach of trust in the sense that the expression is used in for example sexual offences.  This was in any event such a serious offence that, according to the guidelines, as updated, that one would have expected a sentence in the region of 15 to 16 years.  To our mind the judge was over-generous in making the findings of fact that he did as to the state of the offender's knowledge and taking it into account to the extent that he did.  It is also unfortunate that the principal Crown advocate, Mr Probert-Wood, did not point out to the sentencing judge, when he referred him to Aramah, that the sentencing guidelines had been updated.

21.  However exceptional the offender's previous good character, the case of Aroyewumi makes it plain that sentences in the region of those described by Mr Penny are required for offences of this kind. Eight years is plainly well outside the appropriate bracket.  We accordingly quash the sentence of eight years' imprisonment and we substitute for it the very least sentence possible, and that is a sentence of fourteen years' imprisonment.