No:
200800826 A8
Neutral Citation Number:
[2008] EWCA Crim 3211
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 4th December 2008
B e f o r e
:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE BENNETT
HIS HONOUR JUDGE STEPHENS QC
Sitting as a Judge of the Court of Appeal Criminal Division
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R E G I N A
v
KRISTOFFER MICHAEL BELL
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Computer Aided Transcript of the Stenograph Notes of
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Mr R Tedd QC
appeared on behalf of the
Appellant
Mr P Cooke
appeared on behalf of the
Crown
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J U D G M E N T
1.
JUDGE STEPHENS QC: On 12th March 2007 in the Crown Court at Worcester, the appellant pleaded guilty to conspiracy to produce cannabis (Count 1), conspiracy to supply cannabis (count 2), and conspiracy to possess criminal property (count 4), all those conspiracies being committed between 1st December 2004 and 16th June 2006. On 18th January 2008 he was sentenced to 4½ years' imprisonment on count 1, 3 years' imprisonment on count 2 concurrent, and 30 months' imprisonment on count 4, to run consecutive to the 4½ years; that made a total of 7 years. He was also ordered to return to prison to serve 400 days out of the remaining period of 885 days of an earlier sentence from which he had been released on licence. He appeals against sentence by leave of the single judge.
2.
The charges arose out of a major investigation by West Mercia Police. 18 Linthurst Road, a house in a country road in Bromsgrove, had been used for the large scale cultivation of cannabis. The appellant was treated as the de facto owner of the house and the controlling influence, and he used family members to carry out the conspiracy.
3.
The entire property had been adapted for the cultivation of cannabis. An estimated outlay of £5,000 had been spent on equipment including seed trays, electric lights, extractor fans, and many metres of ducting. Different rooms contained plants at different stages of development. There were 587 cannabis plants in total, and it was estimated that the set up would produce three or four crops a year. If sold in kilos, the annual yield would have been worth £80,000 to £110,000. If sold in different ways, it could have been valued in the region of half a million pounds, or indeed, if sold for individual reefer cigarettes it would have been worth up to £900,000.
4.
The appellant's fingerprints were found on various pieces of equipment used in the cultivation of cannabis at the property.
5.
So far as count 2 was concerned, the appellant and two brothers called Lilley were seen regularly visiting a co-conspirator's home in Redditch. The Lilleys ran Hydro Power, an industrial brick cleaning business, and they were the appellant's notional employer. He received a wage from them which provided an apparently legitimate source for some of his outgoings. The company had started as a legitimate enterprise but was undoubtedly used by the appellant in connection with his drug related activities.
6.
He attended meetings with a Mr Brissett and when Mr Brissett's home address in Gloucester was searched, 12 grams of cocaine cut with benzocaine and other items were recovered. There were scales, two cash counting machines, a flak jacket and a Samurai sword was positioned behind the front door. The premises, it was said, had been used as a major repository for cash. On one occasion in March 2006 the appellant had sent a taxi driver to that address to fetch a large sum of money, and thus was his connection with that place established.
7.
So far as count 4 was concerned, the appellant, it was said, lived an extravagant lifestyle. Over a 15-month period he drove 18 expensive motorcars worth a total of £300,000. The home he shared with his girlfriend and co-conspirator, Hannah Brewster, had been furnished, improved and filled with the trappings of wealth. There was an excess of expenditure over legitimate income in the region of a quarter of a million pounds.
8.
The appellant's father, Mr Martin Bell, made false representations to obtain a mortgage on a property. Monthly repayments were channelled through Martin Bell's account via Brewster's bank account to further distance the appellant from the property. Mr Bell was the notionally insured for a number of the expensive vehicles driven by the appellant, to distance him from them. For the same reason, Chelsea Bell appeared as the notional purchaser on various finance agreements.
9.
Another matter which was drawn to the judge's attention was that the appellant had written a letter, whilst in custody serving his previous sentence, expressing his intention to get back on top and not to be deterred from pursuing criminality.
10.
The appellant has substantial previous convictions, the last being in December 2001. For causing grievous bodily harm with intent and perverting the course of justice, he had been sentenced to 8½ years' imprisonment. It was in relation to this sentence that he was on licence when he committed the current offences.
11.
A Pre-Sentence Report assessed him as constituting a high risk of harm to the public. He minimised his criminal involvement in the current offences. The writer of the report indicated that the appellant financed much of his lifestyle through dishonest offending. His family were supportive, despite the fact that his father, brother and partner had been convicted of linked offences. Obviously no alternative to custody was offered.
12.
The learned judge, His Honour Judge Cavell, made these observations in passing sentence. He refers, of course, to the appellant's previous detention and to the letter that he had seen. He found that he was the controlling influence behind the setting up of the operation, and the fact that his lifestyle had benefited in consequence. He referred to the purchase of 18 expensive cars worth £300,000 over a 15-month period, large scale improvements of his home and the expenditure which he had undertaken. The only real mitigation was that he had pleaded guilty. The sentences for the conspiracies to produce and supply cannabis would be concurrent because they arose out of the same facts. The sentence for conspiracy to possess criminal property would be consecutive. He explained then why he had reduced the portion of the unexpired part of the previous sentence because of the totality of the sentence that he was passing.
13.
We have had the benefit of written submissions from counsel for the defendant and also, albeit at the last minute, for the prosecution. Counsel who now represents the appellant, Mr Rex Tedd QC, submits, first of all, the sentence on count 4 of 30 months' imprisonment is wrong in principle. He argues that the criminal property referred to in count 4 was derived from the cultivation and sale of the cannabis which is the subject matter of counts 1 and 2.
14.
In his grounds of appeal, counsel says that the basis upon which deterrent sentences for production and supply of cannabis on a commercial scale are justified is by reason of the profits made, particularly by the organisers. In essence, he says that the sentences on counts 1 and 2 fully reflect the profits made by the production and sale of cannabis and the concomitant necessity of deterrence. So, he submits, the consecutive sentence on count 4 effectively duplicates the sentences on counts 1 and 2.
15.
We have been referred to the important case of
R v Xiong Xu
[2008] 2 Cr.App.R(S) 50, where this court gave guidance as to the appropriate levels of sentencing in cases of large scale production of cannabis. This appellant was treated as an organiser. In the ladder of responsibility there considered, the suggested starting point for an organiser is 6 to 7 years, depending on the quantity of cannabis involved, before taking into account any plea of guilty or personal mitigation. Deterrence, said the Court of Appeal, is the proper factor to be taken into account because such operations are so remunerative. Counsel conceded that the scale of the appellant's violation was typical of that referred to in
Xiong Xu
, but the judge clearly took into account the profits of the operation upon a deterrent basis in setting the sentences on counts 1 and 2. Moreover, he submits, he gave no reason for making the sentence for count 4 consecutive.
16.
Mr Cooke, representing the Crown, puts forward this proposition: that where the gravamen of the money laundering charge is different and adds to the conspiracy counts related to the production and supply of drugs, there is nothing wrong in principle in having consecutive sentences. He accepts, of course, that the sentences on counts 1 and 2 are properly concurrent but, he submits, count 4 extends the criminality and justifies the judge in passing the consecutive sentence.
17.
Two matters he refers to in particular which constitute the different gravamen, as he puts it, are: first, the ostentatious use of the wealth that the appellant demonstrated in his use of funds and the attitude demonstrated in the letter he wrote which sought to glamourise the nature of the criminal activity that he was taking part in; and secondly, counsel says (and this we think is a more significant argument) there is the defendant's cynical use of other people. He used close members of his own family and involved them in his activities, and in particular in the use he made of them in benefitting from the money that he was making from his drug related activities. He used his father in this way, the Lilley brothers, who had a legitimate business to begin with, and also his own sister who was used for the purpose of obtaining finance agreements in relation to the cars which distanced the appellant from the contracts involved.
18.
We have concluded that such activity did entitle the judge to pass a consecutive sentence on count 4. Each case depends upon its own facts and there will be cases where a money laundering charge may well not add to the overall criminality disclosed in drug related offences, whether conspiracies or specific charges. However, on the facts of this particular case, we have concluded that the judge was entitled to pass a consecutive sentence on count 4. In our judgment, the length of the sentence is not manifestly excessive, or indeed wrong in principle, and in those circumstances the appeal fails and the original sentence will stand.