Neutral Citation Number: [2009] EWCA Crim 2198
No: 2008/6762/A7, 2009/0377/A7 & 2009/0165/A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 16 October 2009

B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE McCOMBE 
 
MR JUSTICE BURNETT 
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R E G I N A 

v 

NIGEL GIBBON
STUART GIBBON 
GARY JACKSON 
 
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Mr C Baur appeared on behalf of Nigel Gibbon
Mr R Grey appeared on behalf of Stuart Gibbon
Mr M Sullivan appeared on behalf of Gary Jackson
Mr A Feest appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE McCOMBE:  On 21st November 2008 in the Crown Court at Southampton, before His Honour Judge Boggis QC, the two present applicants, Nigel and Stuart Gibbon, and the appellant Gary Jackson, were re‑arraigned on a multi‑count indictment charging a number of offences relating to their involvement in the supply of controlled drugs of class A ‑ over a period of years in the case of the two Gibbons and a period of months in the case of Jackson ‑ in the Southampton area.  The plea was entered on a day when the case had been listed for mention.  This hearing had been arranged because a trial on these charges had begun on 4th November before the same judge who was to sentence the applicants and the appellant.  That trial had been aborted on 18th November because it became apparent that a juror had been investigating the case independently through the internet.  The jury was discharged and the case was listed for mention and a Goodyear indication was sought by the applicant Nigel Gibbon.  The new trial was then fixed for a date in February of the current year.  We turn later to the consequences of those arrangements.
2.	On 21st November, Nigel Gibbon pleaded guilty to conspiracy to supply a controlled drug of class A (count 1 on the indictment), possessing criminal property (count 2) and three counts of converting criminal property (counts 3, 4 and 5).  Stuart Gibbon and Gary Jackson pleaded guilty to the conspiracy charged in count 1.
3.	On 26th November 2008, Nigel Gibbon and Stuart Gibbon were sentenced by the learned judge as follows.  Nigel Gibbon was sentenced to 16 years' imprisonment on count 1 and 10 years' imprisonment on each of the remaining charges, all the sentences to be served concurrently.  That gave rise to a total sentence of 16 years' imprisonment.  Stuart Gibbon was sentenced to 12 years' imprisonment on count 1.  On 12th December 2008 Jackson was sentenced to nine years' imprisonment.  The period served in custody on remand were in each case directed to count towards sentence.  A co‑accused, Alkis Alkiviadou, pleaded guilty to conspiracy and was sentenced to six years' imprisonment.  His case is not before us.
4.	On the morning of the original trial, Nigel Gibbon (through counsel) sought from the judge an indication of likely sentence following a plea of guilty, pursuant to the procedure outlined in Goodyear [2005] EWCA Crim. 888.  The judge declined to give such an indication at that stage.
5.	At the hearing on 21st November, following the discharge of the jury on the 18th, counsel for Nigel Gibbon again said he was likely to pursue his application for an indication of sentence.  In the light of circumstances as they then stood, in particular because no doubt the learned judge had by that stage heard the bulk of the crown case during the aborted trial, he agreed to give such an indication.  The indication given was that the sentence at that stage would be no greater than 16 years.  We have already mentioned that 16 years was the sentence that was ultimately passed in Nigel Gibbon's case.
6.	Nigel Gibbon and Stuart Gibbon now renew their applications for leave to appeal against sentence following refusal of such leave by the single judge.  In Stuart Gibbon's case he also applies for an extension of time in which to apply for leave to appeal in circumstances which we shall explain.  Gary Jackson appeals against sentence with the single judge's leave.
7.	Stuart Gibbon was sentenced in addition on 18th December 2008 to a further concurrent term of eight years for conspiracy to convert criminal property.  He does not apply for leave to appeal against that sentence.  In those circumstances counsel has explained to us in writing that it seemed prudent to await the outcome of the sentence on 18th December 2008 before lodging an application for leave to appeal against the judge's sentence passed in the previous month.
8.	The facts of the case were in outline as follows.  The police had observed and listened in to the activities and conversations of Nigel Gibbon.  He, it turned out, was the head of a conspiracy to supply cocaine throughout the Southampton and neighbouring areas in a trade which lasted for almost five years from March 2003 to February 2008.  The supply of the drugs generated large sums of cash over the years and as a result the main conspirators enjoyed a substantial lifestyle funded entirely by cash.  The money raised by the trading in drugs was used by Nigel Gibbon in a number of ways, including the purchase of property and vehicles.  Tax records indicated that Nigel Gibbon had not worked or paid tax from 2001 until his arrest in October 2007, and his bank records revealed no regular source of income from any normal salary.  His son Stuart Gibbon was, as we shall amplify a little later, treated by the learned judge as his second in command and they used various runners and assistants such as Jackson to further the unlawful trade.
9.	Counts 3 and 4, which were as we have said counts of converting criminal property, arose in this way.  In late 2005 and early 2006 Nigel Gibbon bought a house in Southampton with a mortgage (that was the subject of count 3).  The purchase price was some £250,000 ‑ 75 percent of that being secured on mortgage.  It was the Crown's case that the purchase of that property was facilitated by the use of the criminal proceeds of the drug trade.
10.	Count 5 concerned a motor vehicle, a Mercedes, that was found parked at that property at the time of the execution of a search warrant on 11th October 2007 and Nigel Gibbon's arrest.  It too was said by the Crown to have been bought with drug‑related money.
11.	Count 4 related to Nigel Gibbon's use of different bank accounts throughout the period of the conspiracy when he deposited cash and made withdrawals.  Again it was said the cash came through nothing other than drug trading activity.
12.	Count 2, a count of possessing criminal property, arose further from the search on 11th October at the Southampton property where the police found two safes in the house.  One in the bedroom contained some £15,000 in cash and a second safe in the kitchen contained some £85,000, also in cash.  Among the documentation found at the property during that search were documents which were entitled "football raffle" and "holiday club".  Fingerprints and handwriting analysis showed that Nigel Gibbon had been the author of those documents.  The football raffle document related to monies received or owed in relation to drugs and a number of names on the list were connected to people known to have links to drug matters.  There was also a reference to the co‑accused Alkiviadou and revealed a bounced cheque for some £43,000 from Alkiviadou to Nigel Gibbon.  That cheque too was found in the search.  There was also an entry relating to Jackson regarding a sum of some £11,000 that he was said to owe regarding drugs.  The holiday club document related to quantities of drugs provided and supplied.
13.	Stuart Gibbon, as we say, was said by the learned judge to be Nigel Gibbon's second in command.  He had had a part in adulterating the cocaine that the business supplied with a cutting agent known as Mannitol.  Following the fitting of a listening device to Stuart Gibbon's motorcar he was heard (after his father's arrest) explaining to others involved in the trade what had happened and telling them to change telephones so as to avoid police surveillance; he was also recorded as having conversations about getting money together and possibly selling the car, and there was a conversation with an unidentified person regarding keeping lists out of the way of the police, and a further conversation about disposing of the Mannitol.  As a result of that conversation the police recovered a large tub, which was labelled as containing Mannitol, from an industrial bin near a supermarket in the area.  Stuart Gibbon was arrested at the time he tried to sell the motorcar.
14.	Stuart Gibbon provided a basis of plea, on the basis of which he was sentenced and to which we shall return later.  In broad, he admitted that he had been involved with the conspiracy for a period of two years only, he had been recruited by his father and acted on the father's instructions during the conspiracy.  He was not involved in the bulk purchase of cocaine and he was not involved in the bookkeeping activities.
15.	In submissions on behalf of Stuart Gibbon today, Mr Grey has emphasised to us, in circumstances to which we will return, that his basis of plea accepted Stuart Gibbon's involvement in the conspiracy from 12th October 2005 until his arrest on 12th October 2007 ‑ that is the day after the arrest of the father.
16.	Jackson's role in the conspiracy was, as we have described, in effect as a runner.  He had been involved in the last six months of the trade between April and October 2007.  He had built up a drug debt in two ways.  He had run up a debt funding his own habit of about £2,000 and had lost a quantity of cocaine which had been entrusted to him by other members of the gang and was regarded as being responsible for restoring to the conspirators the sum represented by that loss.  
17.	In his basis of plea, on which again he was sentenced, he admitted being involved in the conspiracy for the six months we have mentioned.  It was said he ran errands for Stuart Gibbon including the delivery of money.  He was aware of Stuart Gibbon's involvement and was present on a number of occasions when the supply of drugs was discussed.  He had not been involved in the supply of large quantities but did supply street‑type quantities.  He accepted that he had been aware of the availability of larger quantities and on occasion provided information relating to the availability and price of drugs.  One of the reasons that he became involved in the conspiracy was the fact of the drug debt to which we have already referred.
18.	Alkiviadou, who as we say we are not directly concerned with today, was connected to Nigel Gibbon and the conspiracy after the two of them were seen meeting on a date in September 2007 in London and by the discovery of the bounced cheque at the Southampton property.  His name was also on the "football raffle" list.  Stuart Gibbon had also been heard saying that he was going to meet someone called "Al" in London after his father's arrest.  When his home was searched on 31st October 2007 financial documents were recovered.  His position, he said, was that he was a property developer and that the cheque found at the Southampton property was related to a property deal with Nigel Gibbon.  
19.	In a written basis of plea in his case he admitted arranging for the sale of £43,000‑worth of cocaine on behalf of another.  The money had not been paid to Nigel Gibbon, as it was evidenced by the bounced cheque.  He had not physically received the cocaine.  The Crown's case was that he had purchased £43,000‑worth of cocaine from Nigel Gibbon as part of the overall conspiracy and the Crown could say no more about his position than that.
20.	The Crown's case, as can be seen from the facts we have outlined, was that this was a well‑organised and sophisticated gang which dealt in large quantities of cocaine over a number of years in Southampton and the surrounding areas.  It was headed by Nigel Gibbon with his son as second in command, dealing with the day‑to‑day organising of the runners and the dealers further down the chain.  People like Jackson played various parts at various times and all rallied round to reduce the effect on them all after Nigel Gibbon was arrested on 11th October 2007.  
21.	The Crown accepted that in terms of turnover, profit and the amount of drugs potentially sold, the conspiracy represented approximately half in quantity of that with which the court had been concerned in a case called Whiteway, to which we shall return shortly.
22.	Turning to the antecedents of the applicants and the appellant, Nigel Gibbon was born on 26th June 1956 and is now aged 53.  He had nine previous convictions involving 13 offences between April 1976 and January 2001.  They included simple possession of controlled drugs, inflicting grievous bodily harm, criminal damage and offences of dishonesty.  Stuart Gibbon was born on 12th November 1980.  He is 28.  He had six previous convictions for 10 offences between August 1999 and November 2001 which included assault on a constable, harassment, threatening behaviour and criminal damage, but no drugs offending.
23.	Gary Jackson (the appellant) was born on 19th June 1979 and is now therefore 30.  He had one previous conviction for driving with excess alcohol, but nothing else.  
24.	Alkiviadou was born 5th May 1964.  He is now 45.  He had one conviction for threatening behaviour.
25.	The pre‑sentence report before the judge in Jackson's case stated that Jackson acknowledged he was a cocaine user for many years and that he had been asked to hold on to supplies of cocaine for these conspirators being rewarded in cocaine.  He had become indebted to them after losing the cocaine to which we have already referred in this judgment.  It had been entrusted to him.  The probation service reported he was keen to address his misuse of drugs and to return to stability.  As far as his background was concerned, the court was told that he worked as a scaffolder for a number of years, he worked as a runner for the conspirators and had been fearful of the consequences of trying to break his link with them.  The view expressed by the probation officer was that he was easily manipulated by others.  In conclusion, the risk of re‑conviction in his case was assessed as medium and the risk of him causing harm to the public was assessed as low.  
26.	In passing sentence, the judge noted that Nigel Gibbon's involvement in the conspiracy was for almost five years, with that of his son Stuart being two years.  The judge took into account Stuart Gibbon's plea and that of Nigel Gibbon, and in Stuart's case that he had been recruited by the father.  It was accepted he had not been involved in bulk purchases or in bookkeeping, but he admitted involvement in the financial arrangements.  The judge found that Nigel Gibbon had been the head of the gang, as the Crown alleged.  He had lived lavishly and £100,000 in cash had been found on a search of his home.  The judge treated the pleas of guilty as having been entered on the first day of the first trial and said he would give credit accordingly.  Having regard to Whiteway's case (to which we will refer hereafter) he said that after a contested trial the starting point for sentence in Nigel Gibbon's case would have been 18 years which he reduced by 10 per cent to result in the 16 year sentence which he passed.  The judge classed, as we have said before, Stuart (the son) as Nigel Gibbon's trusted lieutenant in the operation, but he said he sentenced him faithfully on the basis of his plea.  He was lower down in the scale than his father but still played a vital role.  
27.	Alkiviadou, said the judge, was much lower down the scale than the Gibbons (father and son).  His basis of plea was as an intermediary in buying a consignment of cocaine from Nigel Gibbon and he had been lured into the illegal trade because of difficult financial circumstances.  He was effectively of good character.  He gave him more than the 10 per cent credit for reasons which do not affect the cases before this court.  
28.	Jackson was sentenced on 12th December and received a sentence of nine years' imprisonment.  In his case the judge indicated that he was prepared to give a larger credit than the 10 per cent that he had afforded the Gibbons (father and son) because he had been constrained to enter a late guilty plea, being unable to do so before the Gibbons had entered their pleas.  
29.	On the present applications and on the appeal, it is argued for a variety of reasons that these sentences, passed in the circumstances that we have outlined, were manifestly excessive.  In Nigel Gibbon's case, and in the others by way of a knock‑on effect, it is said that the sentence failed to accord with the sentences imposed in this court in the case of Whiteway, properly entitled Attorney General's Reference Nos 99 to 102 (Whiteway and others) [2005] EWCA Crim. 294.  It is submitted that the case is properly analogous to the present matter both with regard to the stage at which the pleas were entered and the roles of the various conspirators.  The offenders there had been sentenced to terms of imprisonment ranging from 12 years for the principal offender down to seven years in the case of others.  The Attorney General referred the sentences to this court on the basis that they were unduly lenient and the court held that following a guilty plea at the earliest opportunity it would have expected a sentence of 15 to 16 years for the principal offender, implying perhaps a 22 to 23 year sentence after a contested trial.  The court considered that the judge's starting point in that case of 20 years for the principal offender discounted to 12 years was conspicuously over‑generous.  However, in all the circumstances taking into account also double jeopardy, it decided in its discretion not to increase the sentences.  
30.	In the present case the Crown conceded, as we have mentioned, that the quantity of drugs involved was no greater than half the quantity involved in Whiteway's case.  Counsel properly accepted in argument and in the grounds of appeal that the quantity of drugs is not the only yardstick but, as we say, it is argued that the starting point for sentence should nonetheless have been lower by reference to this case to which the sentencing judge had been referred.
31.	For Nigel Gibbon it is also submitted by Mr Baur in helpful submissions to us this morning that the judge was wrong to allow only 10 per cent credit for the guilty plea as the first trial had been aborted through no fault of the accused and the retrial was not due to start until February or March 2009.  Thus it is argued that the pleas were not entered as it were at the door of the court but some three to four months before trial, saving a good deal of time and public money.  
32.	For Stuart Gibbon it is argued that the sentence was excessive because the plea of guilty and the basis on which it was entered.  He had not continued with the trade after initial arrest.  It was said that his sentence was disparate with those imposed on Jackson and Alkiviadou.  His antecedents were relatively minor and there were no previous convictions for drug offences.  
33.	Those submissions were amplified by Mr Grey on behalf of Stuart Gibbon this morning who emphasised the involvement of this applicant for only two years and recruited into the business by his father, that he had not been involved in bulk purchases and was not involved in the financial documentation.  Mr Grey also urged upon us the submission that the learned judge may have mis‑assessed the role of Stuart Gibbon in a remark that appears on page 4 of the sentencing remarks.  At that stage the learned judge said this:
"Stuart Gibbon, you were your father's trusted lieutenant.  You assumed responsibility after your father's arrest.  I sentence you on the basis of the plea as amended, but whilst lower down the scale, you were still a vital part of the organisation of the gang." 
Mr Grey submitted that this implied that the learned judge was treating this particular applicant as being involved in the conspiracy in the indicted period up to February 2008, rather than simply up to 12th October 2007, the day after Nigel Gibbon's arrest and the involvement in the period thereafter.  We will return to our view of that ground shortly.
34.	For Jackson it is argued that the judge failed to give proper recognition to his limited involvement, his personal mitigation and the reasons for his involvement in the first place, his lack of relevant previous convictions and again it is submitted that the learned judge failed to reflect the fact that the case was significantly less serious, it is argued, than that of Whiteway.  For Jackson, Mr Sullivan emphasised the following points.  That he was only involved for six months up to October 2007, he was a subordinate player, he had no further role after the arrest of Nigel Gibbon on the 11th, only £450 was found in his possession which was traceable to a loan made by his mother and his involvement stemmed from his cocaine addiction and his continued involvement because of his drug debts which we have already mentioned.  Mr Sullivan also emphasises Mr Jackson's personal mitigation, his effectively previous good character and the pre‑sentence report's acknowledgment of some mental problems deriving from the pressure of his involvement in this drug‑dealing enterprise.  
35.	For Jackson, Mr Sullivan has also raised before us in supplementary grounds the sentences passed on other people involved in this conspiracy who were convicted after trial before His Honour Judge Ralls QC and a jury on 6th April 2009.  In particular, it is argued that one of the co‑conspirators, Yorke, was sentenced to seven years' imprisonment after that trial.  The submission is that Yorke had previous convictions for being involved in the supply of controlled drugs.  He was liable to an automatic sentence of at least seven years by statute and he received only seven years as compared to Jackson who received the nine year sentence against which his appeal is brought.
36.	Dealing first with the criticism of the discount given for the plea of guilty advanced principally by Mr Baur, in our view there is nothing to be said by way of criticism for discount given.  A trial had already started and had proceeded to near the end of the Crown case.  The discharge of a jury can occur for many reasons during the course of a contested trial, none of which are the faults of the defendants in the case.  However that is merely an interruption of the trial process which by then has begun.  The time of the plea, as the name of the hearing implies, is at least at the plea and case management hearing and sometimes more appropriately before that.  The discount can be reduced from that point to the door of the trial court.  The trial court door opened in this case on 4th November.  The pleas were in effect entered in mid‑trial and the judge was generous in our judgment to afford as much as 10 per cent discount after 14 days of that trial had elapsed.  
37.	As for the comparison with Whiteway, counsel, as we have already mentioned in written grounds, rightly accepts that a comparison can only go so far as it cannot be argued that half the quantity of drugs implies that half the length of sentence will be appropriate.  The starting point for the main offender in Whiteway was, if we calculate the figures correctly, some 22 or perhaps 23 years after a hypothetical trial.  Here the judge would have started at 18 years.  This case involved in the case of Nigel Gibbon a five year conspiracy.  In Whiteway the activities spanned only 18 months.  This case involved the most pernicious types of drugs which were trafficked on a very large scale.  Stuart Gibbon was involved for two years.  We cannot see that the judge having considered Whiteway, as it was clear from the sentencing remarks that he did, and having heard the bulk of the Crown evidence at trial, can be faulted at bringing the starting point in Nigel Gibbon's case down to the extent that he did.  We consider that discount was entirely appropriate.  The mitigation was minimal.  The result is that the sentence was not excessive and in his case we therefore refuse the renewed application for permission to appeal.
38.	We turn again to the case of Stuart Gibbon.  The judge, as we say, described him as the second in command.  We have already outlined the submission that Mr Grey has made to us today that the judge mis‑assessed his role because of a possible attribution to him of further activity up to the end of the indicted conspiracy period of February 2008.  We consider, however, that the learned trial judge's assessment was right.  Indeed, his involvement as the second in command is thrown into starker light by the very features that Mr Grey emphasises ‑‑ his activities recorded in the car and his communications with the co‑conspirators trying to cover over the traces of the conspiracy.  These made it very clear that his role was indeed as second in command.  This extended to significant conversations with the conspirators seeking to hide those traces, to dispose of the Mannitol and dealer lists and so forth.  Although that communication lasted little over 24 hours and not up to February 2008, it significantly confirmed his role as second in command.  In our judgment the learned judge's assessment of his role was entirely correct and we would refuse his renewed application also.  
39.	We turn to Jackson.  We have already mentioned the points urged upon us by Mr Sullivan which are forcefully and carefully made by him.  We are not persuaded, we should say immediately, by the argument based on disparity with Yorke's case.  The judge heard the same evidence.  He knew of the sentences passed and those that had been dealt with by Judge Boggis and was best able, having heard the trial, to assess what Yorke's proper role was.  We do not consider that Judge Boggis' sentence on Jackson can be criticised because another judge on another occasion on differing material in the light of those materials known to him passed a lesser sentence on Yorke.  
40.	However, we do consider one point tells in Jackson's favour and that is the fact that he was entitled to and got from the judge, as he intended to, a larger discount on sentence than in the case of Gibbon senior and junior respectively.  If we were to add back a notional 20 per cent discount, as opposed to a 10 per cent discount, as we think the judge must have done in Jackson's case, it brings the sentence passed on Jackson, in our judgment, rather too close in the hierarchy to that passed on the second in command, Stuart Gibbon.  Therefore we consider it was wrong to make the starting point for the sentence that high.  Given, as we have explained, the clear role of Stuart Gibbon as the second in command and the much lesser role of this appellant Jackson, we take the view that the sentence of nine years passed on Jackson was indeed excessive.  We propose therefore to allow his appeal to the extent of reducing the sentence passed on him from nine years to eight years and allow the appeal to that extent alone.  The days spent in custody on remand will continue to count as before.