No:
200602394/2270/A8
Neutral Citation Number:
[2007] EWCA Crim 205
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 24th January 2007
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE BURTON
THE RECORDER OF WINCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A
-v-
AKSOY TAHIR AND JAMIE ADAMS
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- - - - - - -
MR S MOSES
appeared on behalf of TAHIR
MISS A MULLIGAN
appeared on behalf of ADAMS
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J U D G M E N T
1.
LORD JUSTICE GAGE: In this matter there are two men, Aksoy Tahir, now aged 37, and Jamie Adams, also now aged 37. In Tahir's case he has leave to appeal against his sentence. In Adams' case the Full Court, when giving leave to Tahir, gave him an extension of time in which to renew his application for leave. Each of them appear in this court through counsel.
2.
On 18th November 2005, at the Crown Court at Middlesex Guildhall, each man pleaded guilty to a single count of conspiracy to supply cannabis. On 12th April 2006, Tahir was sentenced to six years and nine months' imprisonment and Adams was sentenced to six years' imprisonment. 262 days that each had spent on remand were ordered to count towards each of their sentences. There was another co-accused, Anthony Piper. He pleaded guilty to the same count. He was sentenced to two years' imprisonment. He, also, was given credit for the 262 days which he had spent on remand.
3.
As we have indicated, leave to appeal against sentence was refused by the single judge, but on 13th October 2006 the Full Court gave leave to Tahir to appeal against his sentence on two grounds to which we will come in a moment. As we have said, they also extended the time for Adams to apply to renew his application for leave and he has done so.
4.
The facts are as follows. It was alleged by the prosecution that Tahir, Adams and Piper were involved in conspiring to supply cannabis between September 2004 and July 2005. The judge sentenced both these appellants on the basis that they were engaged in the conspiracy from February 2005 onwards. Piper's involvement was limited to one day.
5.
Tahir and Adams were kept under surveillance. On 3rd February 2005 a man named Blake met Adams and Tahir at Adams' home address. Blake was arrested after the meeting. He was found to be in possession of a bag containing £40,000 in cash, which the prosecution contended were the proceeds of drug trafficking.
6.
On 16th July 2005 a number of people were observed pulling up outside Adams' garage. They handed Adams empty bags which he took into his garage and returned full of what was believed to be cannabis. After his arrest, the garage was search and 3 kilogrammes of skunk cannabis was recovered from it.
7.
On 21st July 2005 Piper was seen receiving a large cardboard box from a van outside his house. He took the box inside and went out. Two hours later, Adams and Tahir drove up. They went inside and came out with a box which was subsequently found to contain 11 kilogrammes of cannabis resin. A further 22 kilogrammes of cannabis resin was recovered from Piper's house. £10,000 in cash, heavily contaminated with THC, the active constituent of cannabis, was recovered from Adams' house.
8.
Piper pleaded guilty on the basis that he was warehousing 33 kilogrammes of cannabis at his house and his involvement was limited to that day. The judge sentenced him on that basis.
9.
Adam and Tahir entered bases of plea, limiting their involvement to a certain quantity of skunk cannabis detailed in a record of transactions kept by Adams in an exercise book. We shall refer to the basis of plea in respect of Tahir later in this judgment.
10.
Adams and Tahir accepted responsibility for transactions involving 51 kilogrammes of skunk cannabis detailed in the exercise book, in addition to the 11 kilogrammes cannabis resin found on their arrest. Tahir also accepted responsibility for the 3 kilogrammes found in Adams' garage.
11.
The Crown did not accept the pleas on this basis. Accordingly, a
Newton
hearing took place. In the
Newton
hearing the court found that the basis of plea understated the quantity of cannabis in which they had been dealing. It is clear from submissions made to us today that the amount for which they were found responsible as a result of the
Newton
hearing by the judge was 127 kilogrammes of which 94 kilogrammes of cannabis resin was skunk cannabis. The judge sentenced them on the basis that each was equally responsible for that amount of cannabis resin.
12.
There are two grounds of appeal for which leave was granted by the Full Court. They gave leave, as we have indicated, to Tahir, he having renewed his application for leave, it being refused by the single judge. The two grounds are, first, that the judge was wrong to reduce the discount for a guilty plea from the normal one third to 20 per cent; secondly, that the judge should not have used the silvine notebook as evidence against Tahir when assessing his part in the conspiracy. Giving an extension of time to Adams in which to seek leave to appeal out of time, the Full Court clearly had in mind that he ought to be permitted to put forward ground 1 of Tahir's appeal since it has common application to both men. Accordingly, we propose to deal with ground 1 first.
13.
Both men submit that the judge should have given them the full discount of one third. It is submitted that he was wrong to reduce the discount from one third to 20 per cent. It is pointed out on behalf of each appellant that the prosecution at first alleged that each had been responsible for the distribution of a total of 900 kilogrammes of cannabis. By the date of the
Newton
hearing, and there is some confusion as to whether or not it was at the hearing itself or before, the Crown had reassessed its estimate of the amount involved and reduced it to 300 kilogrammes. The basis of the
Newton
hearing was that the notebook in Adams' possession, the Crown said, referred to a greater quantity than the amount admitted by the two men.
14.
The submission made on their behalf is that the
Newton
hearing was inevitable, that the reason was because the prosecution had grossly over-estimated the amount of cannabis with which each was involved, and, accordingly, it took place simply on a basis of the interpretation of Adams' notebook.
15.
When it came to sentence, the judge dealt with that matter in this way:
"Both of you, Tahir and Adams, are to be treated as having pleaded at the earliest opportunity. Nevertheless, there had to be a
Newton
hearing and the first question the court has to consider is to what extent does the fact that there had to be a
Newton
hearing result in there being a withholding in part of the reduction in the sentence which would otherwise be applicable having regard to your early guilty pleas?
On my findings, I have come to the conclusion that you dealt, as is evidenced by the exercise book, in an amount more than twice the amount admitted by you, Adams. On the other hand, it is rightly pointed out that the amount which I found is much less than the amount contended for by the Crown, even in its revised submission of 300 kilogrammes of skunk."
16.
The judge went on to say:
"My initial view was, as I indicated to Mr Warner, that the right approach was to regard the
Newton
hearing and its outcome as having the effect of reducing the credit to which you would otherwise have been entitled for your early plea of guilty, by one half. But he has persuaded me that that is too harsh an approach. I have come to the conclusion that there should be a reduction in the credit which you would otherwise receive, but the reduction should be to the extent of one third of the credit. So that instead of receiving 30 per cent credit you will receive 20 per cent credit for your plea of guilty. The
Newton
hearing has had the effect of reducing the credit for your plea of guilty to that extent."
17.
It is submitted on behalf of both these two men that the judge should have given full credit for their guilty plea; as we have indicated, the reason being that it is submitted that the
Newton
hearing was entirely due to the prosecution's over-estimate of the amount of cannabis with which they were involved.
18.
In our judgment, there is some force in the appellants' arguments that the
Newton
hearing established that they were responsible for a total of less than half that alleged by the prosecution during the course of the hearing. Nevertheless, as the judge said, he found that they were responsible for considerably more than the figure which was admitted. In our view, the judge was correct to find that they were not entitled to the full discount. They had gained a benefit from the
Newton
hearing, but equally they had not gained the full benefit of what they sought. Accordingly, he reduced the discount from one third to 20 per cent. In our judgment, the reduction was well within the level of what was in all the circumstances reasonable. We see no reason to interfere with that assessment.
19.
We turn, therefore, to the second ground of appeal which is a ground of appeal solely related to Tahir. It is submitted on his behalf that his role was less than that of Adams. It is submitted that he was only a courier and was not equally responsible as the judge found. The basis for this submission, as it appears to have been put before the Full Court when it granted leave, was that the judge was wrong to take into account, so far as Tahir is concerned, the calculations that he made in respect of Adams' notebook. It appears from the judgment of the Full Court that the submission being made to that court was that the notebook was not evidence which was admissible against Tahir and, accordingly, the judge ought not to have found him as responsible as Adams. The Full Court recites the case of
R v
Blake and Tye
[1844] 6 QB 126
. That appears to be the basis upon which the matter was placed before it.
20.
Before us today Mr Moses has submitted that the judge was not entitled on all the evidence to have concluded that Mr Tahir was equally responsible with Adams. As we understand his submissions, he seeks to rely on the fact that his client was not specifically involved in the
Newton
hearing and, accordingly, the judge ought to have dealt with him simply on the basis of what he had admitted in his basis of plea.
21.
Accordingly, we turn to the basis of plea. It is contained first in a handwritten document and, secondly, in a printed document which bears the name beneath it of Mr Moses, his counsel, and is dated 1st December 2004. The handwritten document recites the fact that the appellant accepts:
"[He] was involved in a conspiracy to supply a class C drug namely cannabis from 24th February 2005 to 21st July 2005.
Prior to 21st July 2005 the defendant had been dealing in skunk cannabis. The drugs seized from Adams' car on 21st July 2005 was not the type of drug which he had hitherto dealt in. The defendant has no knowledge of the 22 kilos of cannabis found at Piper's address."
22.
The printed "explanation of calculation in basis of plea" recites the following at paragraph 2:
"The totality of the said drugs in respect of which Mr Tahir had knowledge and agreed to involve himself in are made up of the following:
(a) 51 kilogrammes of skunk (referred to in the notebook of Adams);
(b) 11 kilogrammes of cannabis resin (seized from Adams' vehicle)."
23.
It would appear from that document, at least, that Tahir was tying his basis of plea to what was recorded in Adams' notebook. That also coincided, as we understand it, with the basis of plea being put forward by Adams.
24.
Dealing with the first point so far as this ground is concerned, which is whether or not the notebook was evidence against Tahir, we have been referred by Mr Moses not only to
Blake and Tye
, but also to a decision of this court in
R v
Devonport and Pirano
[1996] 1 Cr App R 221. The headnote of the report in that appeal reads as follows:
"The appellants were two of five people convicted of conspiracy to defraud the National Westminster Bank of £310,000. The prosecution relied on a document dictated by one defendant, as evidence of the conspiracy against all the defendants. The document showed the proposed division of the proceeds of the conspiracy among all five defendants. The document was admitted, although there was no evidence that the appellants had prepared the document or had been a party to its preparation and there was no link or connection between either of them and the document.
Held, dismissing the appeal, that (1) the document was admissible against each defendant, if it constituted an act or declaration by the other defendant in furtherance of the conspiracy and provided that there was some further evidence beyond the document itself to prove that they were parties to the conspiracy alleged against them; Blake, Donat and Windass [references given]. Since there was such further evidence of the conspiracy and although none of the other conspirators had anything to do with the preparation of the document, or had handled it, prima facie it was prepared in furtherance of the conspiracy and was therefore admissible."
25.
In the course of giving the judgment of the court, Judge J, as he then was, said at page 227:
"The only remaining question therefore was whether the document was prepared in furtherance of the conspiracy. We do not accept that it should only have been admitted if every other possible explanation for it had been excluded. We do not see
Steward
[1963] Crim LR 697 as supporting that proposition as advanced by Mr Bright. In our judgment, a realistic or reasonable inference that it was prepared in furtherance of the conspiracy would be sufficient for these purposes.
We have of course considered the document itself. The document appears to be not a record of distribution after the conspiracy, as in the case of
Tye
, but an indication of the intended or prospective distribution of the proceeds of the conspiracy when it had been fulfilled. It identifies the conspirators. It is therefore a rare and compelling example of written evidence of the existence of a conspiracy and of the identity of participants in it. Although none of the other conspirators had had anything to do with the preparation of the document, or handled it, prima facie it was prepared in furtherance of the conspiracy, therefore it was admissible."
26.
On behalf of Tahir, Mr Moses submits that the document which the judge had before him was no more than jottings by Adams for his own benefit and not admissible against his client.
27.
So far as that is concerned, the judge in ruling on the
Newton
hearing said of the silvine book (page 3 letter H):
"It is clear that the silvine book is a record of dealings by Adams, on his evidence, which was not challenged by Mr Gadsden, for the Crown. It is, to an extent, at any rate, also a running record, showing how payments were made for the drugs by Adams' customer."
28.
At letter C:
"In addition to the figures representing 'cash expected', 'cash received', 'cash paid (to the suppliers)', there are numerous notes indicating the number of kilogrammes of skunk supplied to different customers, whose names normally appear in an abbreviated form."
29.
In the case that we have to deal with, Tahir's case, it was for the judge to decide whether or not the document was one prepared in furtherance of the conspiracy. There was no doubt that there was a conspiracy which included both Tahir and Adams; that was apparent from the pleas of both of them. There was also evidence that each was concerned in supplying drugs. The question for the judge was: what inference was he entitled to draw from the notebook and all the other evidence?
30.
He said in his sentencing remarks (page 7):
"Now, so far as you, Tahir, are concerned, it is urged on your behalf that you are not affected by my findings in relation to the exercise book and that I should still sentence you on the basis of your plea that you were only involved in the conspiracy to the extent of dealing in those 51 kilogrammes clearly identified within the exercise book, plus the 11 kilogrammes in Adams' car and the 3 kilogrammes in Adams' garage."
We interpolate, precisely the same submission that is made before the this court.
31.
The judge continued:
"I see no basis at all for differentiating between your position and Adams' position in this regard. The exercise book refers on more than one occasion to the sums due or owed as 'we owe' or 'we pay' and there is no distinction or differentiation made anywhere in that exercise book between different transactions such as suggest that some were Adams' own responsibility and not equally yours.
In the prosecution case summary it was asserted by the Crown that the matter should be approached on the basis that you, Tahir, were the principal member of the conspiracy, with Adams being your trusted lieutenant. Mr Gadsden, on the Crown's behalf when I asked him what the evidence was to support that, acceded to my suggestion that it might be appropriate in the circumstances to treat each of you, Adams and Tahir, as equally involved."
32.
The judge went on a little later:
"But you, Tahir, through your counsel, have suggested that you were involved in a much more minimal way altogether, that you were involved initially, it is suggested, as a kind of courier. But when I enquired whether you had driven the car it turned out that you cannot drive. Mr Moses on your behalf refined that part of the submission to suggest that you were, as is carefully worded in your basis of plea, simply involved in the distribution. But I am totally unconvinced by that suggestion, particularly bearing in mind your previous record, to which I shall refer in more detail later, as a convicted drugs dealer. I am quite satisfied that you were dealing in these drugs at least to the same extent as your co-conspirator Adams."
33.
We have no doubt that this was a finding which the judge was entitled to make on all the evidence in the case. In our judgment, the notebook kept by Adams was properly admissible as evidence against Tahir and it was, similarly to the case of
Devonport and Pirano
to which we have referred, compelling evidence about the way in which the conspiracy was run, both men being involved it. Accordingly, we reject this ground of appeal.
34.
One other matter needs to be dealt with. On behalf of Adams Miss Mulligan sought to raise a point which was in his original grounds of appeal, which were not renewed and for which he has not got an extension of leave. Accordingly, we can deal with it shortly. The submission is that the judge failed to take into account matters of personal mitigation in respect of Adams. Among other things, it is submitted it is an unusual case because he had taken on responsibility for young children and therefore the sentence passed on him would be that much more onerous than usually. It is quite clear from his sentencing remarks that the judge was well aware of the appellant's personal circumstances. He plainly took that into account. In our judgment, there is nothing in that submission.
35.
Accordingly, we grant leave, so far as Adams is concerned, but we dismiss the appeals in each case.