Case No: 200603873 A3; 200604935 A3; 200606195 A3; 200604385 A3
Neutral Citation Number:
[2007] EWCA Crim 876
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 23 March 2007
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE OWEN
MR JUSTICE WALKER
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R E G I N A
-v-
RICHARD SALTMARSH
JOHN MARK RICHARDSON
ANTON VASINORAS
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MR D ROBSON QC AND MR J LENNON
appeared on behalf of the SALTMARSH
MR T SINGH
appeared on behalf of RICHARDSON
MR G WOODHALL
appeared on behalf of the PROSECUTION
- - - - - - -
J U D G M E N T
1.
MR JUSTICE OWEN: We propose first to consider the renewed applications for leave by Richard Saltmarsh and Anton Vasinoras in relation to indictment T20067171, the Manchester firearms indictment; then secondly, to consider the renewed application for leave by Richard Saltmarsh and the appeal by John Richardson in relation to the drugs indictment, indictment T20057304.
2.
On 27th April 2006 the applicant, Anton Vasinoras, appeared at the Crown Court at Manchester, where he pleaded guilty to two counts of an indictment - count 1, conspiracy to contravene
section 170 of the Customs and Excise Management Act 1979
; and count 2 - conspiracy to present firearms with intent to enable another person or persons unknown to endanger life. On 7th July 2006 the applicant, Richard Saltmarsh, was convicted on the same counts and was sentenced to 20 years' imprisonment on count 2, there being no separate penalty imposed on count 1. On 28th July Vasinoras was sentenced to 14 years' imprisonment on count 2, no separate penalty being imposed on count 1. In his case there was a direction that 360 days spent on remand should count towards the sentence.
3.
Both renew their applications for leave to appeal against sentence following refusal by the single judge.
4.
The applicants were jointly indicted with four others - Marius Renke, who pleaded guilty on re-arraignment after the jury had been sworn, on count 1 and count 2, and was sentenced to 18 years' imprisonment; James Parker, who pleaded guilty to both counts and was sentenced to 13½ years' imprisonment; Dawson Wray, likewise, pleaded guilty to the two counts and was sentenced to 11½ years' imprisonment. A fourth man, Robertas Bauzys, was acquitted by the jury.
5.
The conspiracy involved the importation of 30 9 mm self-loading pistols and 1220 rounds of live ammunition. The guns and ammunition were imported from Lithuania. The pistols were Kuno Meltcher guns of German manufacture. They were designed for blank firing and would normally have had choke barrels. But the barrels had been cut off and replaced with steel tubes with external screw threads at their ends. Silencers had been fabricated to fit the steel tubes. The magazines had been adapted to fire live ammunition.
6.
The handguns were concealed in a secret compartment of a specially adapted Volvo motor vehicle which was driven across Europe and entered the United Kingdom by ferry. The man who drove the vehicle was Bauzys, who was acquitted by the jury. The car was originally from Belgium but had been modified and welded together with parts from an English market right-hand drive Volvo. The floor had been raised and the secret compartment welded beneath it. It was in this compartment that the firearms and ammunition were hidden.
7.
The car arrived at Harwich on 2nd August 2005. On the same day Vasinoras and Renka flew into Gatwick from Lithuania. They made their way by train to Coventry where they were met by Parker. The car also made its way to Coventry where there was a rendezvous. The four men then made their way to Manchester, travelling in convoy in two cars, one being the Volvo containing the firearms and ammunition. They drove to the home of the co-defendant, Wray. They were then under police observation, and attempts to recover the guns from the compartment in the vehicle were observed.
8.
It was on that day that a number of the defendants were arrested. But it was the analysis of mobile telephones recovered by the police that led the police to Richard Saltmarsh, who was in regular contact with Graham Parker at very significant times whilst these events were unfolding.
9.
It was the Crown's case that Richard Saltmarsh was at the head of the conspiracy and was its controlling mind, whilst keeping himself distant from the importation and subsequent onward distribution of the firearms.
10.
In passing sentence on Saltmarsh on 7th July, and on Wray, Parker, Renke and Vaisnoras an 28th July, HHJ Lever summarised the expert evidence as to the modification of the firearms and the construction of the false floor in the Volvo, observing that it involved a considerable amount of planning. He continued:
"This method of concealment and importation of firearms has not been seen in the UK before. The 30 guns and silencers and 1,220 rounds of live ammunition, make this one of the largest single seizures of firearms ever imported into the United Kingdom. If successful, the impact on gun crime in Greater Manchester would have been potentially enormous. From January 2004 to March 2006 there were in Greater Manchester 1,378 crimes in which firearms were used. 759 or 55% definitely involved handguns, with a further 504 where the exact nature of the weapon was unknown, so it may have been higher. There are 125 firearms forensically identified as outstanding. An extra 30 guns in this case represents a 24% increase on the streets of Greater Manchester which would potentially represent an enormous escalation of the threat, particularly having regard to the large amount of accompanying live ammunition. Of those 125 outstanding firearms, 25 have been discharged on 79 occasions, and 20 used in murders or attempted murders. Ammunition, particularly factory made, is scarce in Greater Manchester, so 1,220 additional rounds would have presented a significant danger to the community.
Since April 2003, 128 people have been killed or injured by firearm discharge in Greater Manchester. Handguns are more popular because they are easier to conceal than shotguns, and are a status symbol amongst young gangsters. Because these 30 guns can fire at least five rounds from the magazine without a need to reload, they are significantly more of a threat than single shot firearms. Gun crime is by its nature chaotic and unpredictable, and in Greater Manchester innocent people have been murdered or injured in the cross-fire in recent years. These crimes lead to a severe fear factor in the community. If these guns and ammunition had reached local gangsters, it would greatly have impacted on the community as a whole."
Those are observations that we strongly endorse.
11.
As to the roles of the conspirators the learned judge, having heard the evidence at the trial of Richard Saltmarsh, was satisfied that he was a prime mover. When sentenced he was a man of 27 with a record of minor offending.
12.
As to Vasinoras, it was the Crown's case that he was the interpreter, the key contact between the English end of the conspiracy and the Lithuanian end. He had flown to the United Kingdom with Renke and it was he who was revealed by the text messaging to have been involved in negotiating a price for the firearms.
13.
Renka pleaded guilty at the late stage of his trial having already given evidence. In passing sentence on him, the learned judge observed that his evidence had been a pack of lies from start to finish, and that it was an aggravating feature of the case that he had attempted to offload responsibility on to Bauzys, who was acquitted by the jury. The learned judge concluded that he, Renka, was "nothing short of a young Lithuanian international gangster."
14.
Wray, a man of 31 years, was the Manchester end of the conspiracy. Parker was a close friend of Saltmarsh and a mere neighbour in Coventry. The judge was satisfied that he was Saltmarsh's right-hand man at the Coventry end of the conspiracy. Both, he concluded, were highly involved.
15.
Richard Saltmarsh now seeks permission to appeal on the basis that that the learned judge erred in taking a term of 20 years as his starting point, and in his case his end point. Vasinoras also contends that the starting point of 20 years was out of line with recent authority and was too high. The supplementary point advanced on his behalf is that his was a lesser role than that of Saltmarsh, and that the lesser degree of culpability ought to have been reflected in the sentences passed upon him.
16.
In support of the principal submission, our attention was invited to the decision of this court in
Attorney-General's
Reference Nos 120 and 121 of 2004
[2006] 1 Cr App R (S) 7
at 44. In that case the offenders had pleaded guilty to conspiring to manufacturer prohibited weapons, conspiring to sell or transfer prohibited weapons and conspiring to possess firearms with intent to enable others to cause fear of violence. Over a period of 10 months the offenders obtained large quantities of blank firing handguns and corresponding blank ammunition. The offenders converted the weapons and ammunition into effective lethal prohibited weapons capable of firing ammunition. The adapted firearms and ammunition were then sold direct to interested parties. It was estimated that about 150 weapons were sold in this way.
17.
The defendants had been sentenced to six years' imprisonment concurrently on each count; and the Attorney-General asked the court to review the sentences on the grounds they were unduly lenient. This court considered that the appropriate starting point for such criminality would be a total of about 15 years. From that starting point there would be a reduction to 9 years allowing for the full discount promised to the offenders, and a period to allow for double jeopardy inherent in a reference. The court therefore reduced the total sentences to 9 years imprisonment.
18.
In passing sentence on these applicants HHJ Lever took express account of that decision, but rightly, in our judgment, drew attention to the important distinguishing feature, namely, that the maximum sentence for each of the conspiracies to which those offenders pleaded guilty was 10 years; whereas in this case the maximum sentence for the offence of possession of a firearm with intent to enable others to endanger life contrary to
section 16 of the Firearms Act 1968
(as amended) is life imprisonment, and accordingly the conspiracy to which Vasinoras pleaded and Saltmarsh was convicted also carries a maximum term of life imprisonment (see
section 3 of the Criminal Law Act 1977)
.
19.
In our judgment, the element of intent raises the offence into a significantly more serious category. We consider that the learned judge was fully justified in taking a term of 20 years as a starting point. We take account in the case of Saltmarsh that he had not hitherto been sentenced to a custodial term, and of his relatively young age. But we have to take full account of the horrific consequences of putting guns of this sort into circulation; consequences that are all too apparent from recent killings in London and in Manchester. In our judgment, there is no basis for arguing that the starting point, and in the case of Saltmarsh the end point, of 20 years was manifestly excessive.
20.
As to the supplementary point advanced on behalf of Vasinoras in his written application, the learned judge noted that he had pleaded guilty at the first available opportunity, but that he had put in a "false, lying and untrue basis of plea." The learned judge continued:
"The evidence I heard during the trial made it clear to me that the basis was not in accordance with the evidence, and I offered you a Newton hearing, and you very wisely did not pursue that Newton hearing, otherwise would you have lost even more credit, but you promptly abandoned the false and untrue basis, and in the circumstances you too will not receive 30% but a 25% discount."
He continued, however, that a strict mathematical calculation of the sentence would therefore lead to one of 15 years, but,
"I do justice as instinct tells me, having the total feel of the whole case, and in your case the appropriate sentence is one of 14 years imprisonment."
In our judgment, that the further reduction reflected an acknowledgment that whilst Vasinoras was an essential link in the conspiracy his was a somewhat lesser role than that of Saltmarsh and Renka, warranting the further discount of one year. In our judgment that approach cannot be faulted. In those circumstances, we are not persuaded in his case that there is any arguable basis for the contention that the sentence was manifestly excessive.
21.
Before giving our decision in relation to those applications, it is appropriate to turn to the second indictment.
22.
On 23rd January 2006 Richard Saltmarsh appeared at the Crown Court at Coventry and pleaded guilty to an offence of conspiracy to supply a Class A drug. I note that in the course of his trial on the firearms offences the applicant, Saltmarsh, had given evidence in terms that he was a drug-dealer on a substantial scale. On 1st August 2006 John Richardson pleaded guilty to the same offence and on 1st September was sentenced to six years' imprisonment, the 161 days spent on remand to count towards his sentence. On 3rd November Richard Saltmarsh appeared at the Crown Court at Manchester before HHJ Lever who had sentenced him to the term of 20 years' imprisonment on 7th July. He then sentenced Saltmarsh to six years' imprisonment to be served consecutive to the term of 20 years. Richardson appeals against sentence with the leave of the single judge. In the case of Saltmarsh, his application was referred to the full court by the Registrar.
23.
Saltmarsh and Richardson were indicted for conspiracy with a number of others, two of whom were convicted: Thomas Maloney on a plea of guilty, and his brother, Quintin Maloney by a verdict of a jury. Thomas Maloney was sentenced with Saltmarsh at the Manchester Crown Court on 3rd November. He received a sentence of 8 years, less 388 days served on remand. Quintin Maloney was sentenced with Richardson on 1st September at the Crown Court at Warrick and, like Richardson, received a sentence of 6 years less 153 days spent on remand.
24.
Before addressing the grounds advanced on behalf of Saltmarsh and Richardson, it is necessary shortly to consider the roles played by both them and their co-defendants. Thomas Maloney and Richard Saltmarsh were the principal parties to the conspiracy which involved the preparation of large quantities of Class A drugs for retail distribution. The evidence against them related to a period of four months during which they operated as suppliers of Class A drug with the street value of the order of £160,000. Richardson and Quintin Maloney played a lesser role, succinctly summarised by HHJ Coates when passing sentence upon them:
"John Richardson and Quintin Maloney, during the period covered by the indictment you both helped the principal characters in this saga - Thomas Maloney and Richard Saltmarsh - in the conspiracy to prepare vast quantities of Class A drugs for retail distribution. I am quite satisfied that you were both involved because you could provide safe houses in the sense they were not addresses that the police were going to be automatically interested in and you were not people they were going to be automatically interested in. You were of good character.
Your job, Quintin Maloney, was to allow your garage to be used for the storage of these drugs, the garage to which Thomas Maloney had access, and certainly on the night that I heard about I have to conclude that you delivered the drugs to Richardson's address.
Your part, Richardson, on the evidence, was to allow those drugs to be cut and prepared for retail distribution in your kitchen; it happened on more than one occasion during the period covered by the indictment.
You both participated in this conspiracy with your eyes wide open, you both knew the risks you were taking; you both knew the consequences that would result if you were detected.
I have made it quite clear and I make it clear again that you were not as involved as Thomas Maloney and Richard Saltmarsh; it was, in my judgment, having heard the evidence, entirely their enterprise, but they were people in respect of whom the police may well have had interests."
25.
In support of his submission that the sentence imposed upon Richardson was manifestly excessive, Mr Singh essentially advances three arguments: first, that insufficient credit was given for his plea; second, that no account was taken of the principle of parity in passing the same sentence on him as on Quintin Maloney; and thirdly, in any event the learned judge took too high a starting point, given the quantity of drugs involved - 365 grams at 100 per cent purity.
26.
The learned judge addressed the discount for plea in the following terms:
"You, Richardson, pleaded guilty at trial and you are entitled to some credit for that, and I give you some, but not much; the reason for that is that you then gave evidence during the trial, it was inconsistent with your plea of guilty, inconsistent with your case statement, and, indeed, the reality is you committed perjury, but I hope there will be no action taken as a result of it. Your sole purpose was to try and help your girlfriend, who indeed was acquitted, but I am quite satisfied was not acquitted because of anything you had to say to the jury."
27.
The learned judge did not indicate the starting point before discounting for plea. The SGC guidelines recommend a discount of one-sixth for a plea at the last moment. But, as we have already indicated, when called to give evidence by his co-defendant, his girlfriend Sarah Maloney who was the sister of Thomas and Quintin Maloney, the appellant gave an account that was inconsistent with that plea.
28.
In those circumstances the judge was fully justified in giving a lesser discount than the one-sixth recommended in the SGC guidelines. But that issue cannot be addressed in isolation. It is submitted on the appellant's behalf that the failure to give any, or any adequate, discount is demonstrated by the fact that he received the same sentence as Quintin Maloney, and it is therefore necessary to move to the second strand of his case, the parity argument.
29.
Quintin Maloney was not, of course, entitled to any credit for plea. He fought the case. The learned judge was plainly impressed by his personal mitigation, saying this:
"You, Quintin Maloney, I have said on more than one occasion, it is a very sad feature to see you standing before me. You are a talented man, you came over well when you gave your evidence - the jury did not believe you - but you are a talented man, you are well educated, you are a family man, and you had a very good job which paid you very well, you had good prospects, but out of some sort of family loyalty you allowed your brother to use your garage to store these Class A drugs. You have lost a lot because of this conviction."
30.
But it is submitted on behalf of Richardson that he too was, in effect, a man of good character, having a single conviction for simple possession of cannabis, and was in work as a self-employed heating engineer. As to their roles, it was submitted that Quentin Maloney's was, if anything, the greater, as he provided a secure storage for the drugs allowing the safe in which they were stored to be kept at his property. But in any event, it is clear from the sentencing observations and from the manner in which the prosecution put the case that the learned judge treated them as operating at the same level. He was in the best position to judge their relative involvement, having heard the evidence at the trial of Quintin Maloney and the evidence that Richardson gave in the course of that trial. Thus, the position is that they were sentenced to the same term on the basis that their roles in the conspiracy were essentially the same, both having provided safe houses. Yet Quintin Maloney was not entitled to any credit for plea, whereas the judge stated in terms that he was giving Richard some, albeit limited, credit. The question is, therefore, whether the personal mitigation available to Quintin Maloney was such as to cancel out the discount for plea given to Richardson. Whilst Quintin Maloney had clearly made a favourable impression upon the judge in giving his evidence, whereas Richardson manifestly did not, it has to be borne in mind that Quintin Maloney's evidence was rejected by the jury.
31.
In those circumstances, we consider that there is substance to the submission as to parity, tied in closely as it is with the submission in relation to credit for plea.
32.
The third strand of the argument advanced on behalf of Richardson is that the judge took too high a starting point. In this context our attention was directed in the written grounds of appeal to two decisions of this court:
R v Sykes
[2002] 2 Cr App R (S) 83 and
R v Phillips
[2003] 2 Cr App R (S) 14 at 61. In
Sykes
the court allowed the appeal against the sentence of 4 years' imprisonment on a man who had pleaded guilty to permitting premises to be used for supply of a Class A drug. He was a long-term heroin addict who occupied a room in a hostel for the homeless. When police raided the premises they found six people in a room and various small quantities of heroin consistent with personal use by the occupants. The sentence was reduced to 3 years.
33.
In
Phillips
, the court allowed an appeal against a sentence of 4½ years on a man who had allowed his premises to be used for the supply of Class A controlled drugs. The appellant was the tenant of a council house. Police officers stopped and searched a man leaving the premises. He was carrying about £2,000 and 32 wraps of crack cocaine. The appellant was found in the living room of the house, and near him a piece of foil containing an amount of 0.65 grams of crack cocaine. He admitted that over a period of about two months he had allowed two men, including the man arrested, to use his premises to sell cocaine, and was paid in kind with drugs. His sentence was reduced to 3 years. But in both
Sykes
and
Phillips
the offending was of a very different character and scale to that involved in this case, which involved a major conspiracy to distribute commercial quantities of Class A drugs. We do not consider that the decisions provide support for the contention that the starting point was too high or that the sentence was manifestly excessive.
34.
But given the validity of the argument as to parity, we consider that in the case of Richardson the appeal should be allowed. We therefore propose to reduce the sentence to one of 5 years' imprisonment.
35.
We turn then to the renewed application for leave on behalf of Richard Saltmarsh, who was sentenced to 6 years' imprisonment to be served consecutively to the 20-year term imposed for the conspiracy to possess firearms and ammunition with intent. The argument advanced on his behalf is essentially the totality argument. Mr Robson invited us to consider whether, given his age, and taking full account of the criminality involved, a sentence of 26 years' imprisonment was not simply too high.
36.
In our judgment that argument is not made out. The co-defendant, Thomas Maloney, who pleaded guilty at the first opportunity was sentenced to eight years' imprisonment, the sentencing judge having taken a term of 12 years as his starting point. That was entirely appropriate, given the nature and scale of the conspiracy. It is clear that the learned judge did not consider that Richard Saltmarsh's degree of culpability was less than that of Thomas Maloney, and in his sentencing observations quoted at length from the evidence given by Saltmarsh in his trial on the firearms offence as to his drug-dealing. It is not necessary to repeat it. Suffice it to say that it bore out the judge's view that Saltmarsh was operating as "a premier league gangster". The only distinction between Saltmarsh and Thomas Maloney was that Maloney had a previous conviction in dealing in cannabis and shortly before the conspiracy had completed the long custodial part of a term of 3 years 3 months' imprisonment for that offence. But the sentence imposed on Richard Saltmarsh was 2 years less than that imposed on Thomas Maloney. That no doubt reflected to some degree the distinction between them in terms of the previous conviction of Thomas Maloney, but more importantly was clearly a recognition of the totality argument. We are satisfied that the learned judge took full and proper account of the totality of the sentence that he was imposing, and that it cannot be said to have been manifestly excessive. It follows that his application for leave will be dismissed.
37.
LORD JUSTICE KEENE: I make it clear the number of days spent in custody in your client's case to be taken into account will still be take into account for that reduction, Mr Singh.