Cooke, & Ors, R. v

In sentencing for a Class A drug-supply conspiracy, the court may assess the aggregate quantity involved across multiple transactions. It must nevertheless sentence each offender by reference to that offender’s role, period of involvement and identifiable share of the enterprise. A central organiser need not participate personally in every transaction.

Very large-scale commercial supply may justify sentences of 20 years or more, subject to culpability. A guilty plea advanced on an unjustifiably restricted basis may attract reduced credit. However, where a basis is withdrawn well before a proposed Newton hearing and the sentencing judge has created a legitimate expectation that any reduction will be slight, a substantial reduction in credit is wrong in principle.

The applicants were involved in a Liverpool-based conspiracy which supplied heroin and cocaine to organised criminal gangs in Scotland, South Wales, Lancashire and Cheshire. The conspiracy operated between May and November 2011 and involved at least 20 kilograms of high-purity heroin, with a wholesale value of up to £3.555 million.

Six applicants pleaded guilty at Liverpool Crown Court and two were convicted after trial. On 8 August 2012, His Honour Judge Aubrey QC imposed sentences ranging from 9 years 4 months to 17 years’ imprisonment. The applicants renewed applications for leave to appeal after refusal by the single judge.

The principal questions were whether the starting points and resulting sentences were manifestly excessive, and whether the discounts for guilty pleas were proper.

1. Disposition. The court granted McDonald leave to appeal and reduced his sentence from 15 years to 14 years’ imprisonment. It refused the remaining renewed applications. It also extended Jolly’s time for renewing his application, but dismissed his sentence appeal.

2. The sentencing judge had proceeded on the basis that the Sentencing Council’s definitive guideline did not apply to conspiracies. The court noted that R v Khan [2013] EWCA Crim 800 had clarified that it does. A sentencing court may take account of the aggregate drug quantity in a conspiracy involving multiple supplies. It must then assess each offender’s culpability by role and reflect any limited period, transactions or part played by that offender.

3. Participation in a wider conspiracy is aggravating because each conspirator gives assistance and reassurance to the others. The greater the offender’s awareness of its scale, the greater the culpability. Organisers may have joined after the conspiracy began or may not feature in every transaction; neither fact necessarily requires a lower sentence. On the scale of this operation, starting points of 23 years for Cooke, 20 years for Swarez and McDonald, and the other starting points imposed, were not manifestly excessive.

4. A plea tendered on a materially restricted or unjustified basis may properly receive reduced credit, particularly where a Newton hearing is pursued or necessary. This justified the reduced discounts for Cooke, Swarez and Cromwell. McDonald, however, withdrew his proposed basis substantially before the listed Newton hearing. The prosecution’s delayed objection and the judge’s indication that any reduction from full credit would be small created a legitimate expectation. A reduction to 25 per cent was therefore wrong in principle; credit of about 30 per cent produced a sentence of 14 years.

5. Beck, Jolly and Wildman had played substantial roles in a very large-scale operation, and their sentences were not manifestly excessive. Smith’s application had already been refused by a different division.

• Court of Appeal (Criminal Division) — On renewed applications following refusal by the single judge, the court reduced McDonald’s sentence from 15 years to 14 years and refused the other applications.
• Liverpool Crown Court — His Honour Judge Aubrey QC sentenced the applicants on 8 August 2012 for conspiracy to supply a Class A controlled drug. Sentences ranged from 9 years 4 months to 17 years’ imprisonment.