Michael Lloyd [2019] EWCA Crim 1192
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In Michael Lloyd [2019] EWCA Crim 1192 the Court of Appeal dismissed an appeal against a sentence of seven years and three months’ imprisonment for conspiracy to import controlled drugs.
Mr Lloyd had pleaded guilty on 6 July 2018 before His Honour Judge Drew QC at Birmingham Crown Court and was sentenced on 19 November 2018. A co-accused, Geoffrey North, had earlier pleaded guilty to the same conspiracy at Southwark Crown Court on 19 August 2016 before Ms Recorder Jones and received six years and eight months’ imprisonment.
In the summer of 2014 the appellant and North were involved in a professional conspiracy to import 15 kilograms of high purity cocaine from Spain with a potential street value of over £2 million. The conspiracy was infiltrated by two undercover National Crime Agency officers posing as a haulage contractor and driver. North and the appellant met one of the undercover officers to arrange the importation and the appellant took an active part, explicitly discussing the nature and quantity of the drugs and suggesting that they could double the amount on future occasions to increase profits. It was agreed that the undercover officers would be paid £20,000 for their role. After the drugs were handed over in Spain they were swapped for a similar substance and conveyed to the home of the appellant’s stepfather, who handed over a bag of cash. The appellant was in regular telephone contact with his stepfather throughout and made eleven attempts to contact him in the hour after officers arrested him at the handover. North was arrested in Ilford shortly thereafter. The appellant, however, left the country to avoid arrest. The drugs were analysed and found to be 15 kilograms of cocaine at 80 per cent purity, with an estimated wholesale value of between £540,000 and £675,000 and a street value of just under £2.4 million. The appellant’s stepfather and two other alleged co-conspirators stood trial at the Central Criminal Court and were acquitted. North absconded before a scheduled interview in December 2014 and went to Mallorca but was eventually arrested under a European Arrest Warrant and brought back to be sentenced in August 2016. The appellant was also arrested under a European Arrest Warrant in Spain and returned to the United Kingdom on 8 June 2018, whereupon he pleaded guilty.
Judge Drew identified the appellant as having played an important organisational role in a category 1 conspiracy and a significant role in guideline terms, giving a starting point of ten years’ custody based on 5 kilograms with a range of nine to twelve years. He noted that the volume of drugs greatly exceeded the indicative amount. The judge considered that North and the appellant should be assessed as on an equal footing but that North’s case was aggravated by a 2008 conviction for drug trafficking for which he had received seven years and six months. The judge stated that had he dealt with them together he would have taken a starting point of twelve to fourteen years but that he could not comprehend the Recorder’s starting point of ten years for North. The judge decided that in fairness he had to take account of the sentence passed on North and also bear in mind the appellant’s mitigation, his age and absence of previous convictions. The judge said that if untrammelled by North’s sentence he would have settled upon a post-trial sentence greater than ten years but considered that to do so would be entirely unfair particularly given North’s previous conviction. He therefore identified a sentence after trial of nine years. Turning to credit for plea, the judge stated that the appellant would normally be entitled to one-third discount but that he did not think it right to give the appellant that discount because he had gone on the run for four years, showing no sign of remorse but rather an intention to evade responsibility. The judge commented that once extradited and faced with overwhelming evidence the appellant did the only sensible thing by pleading guilty. The judge considered that the period of absconding was very substantial and had to be reflected, and that to reduce the discount for guilty plea seemed the right way to do so because it indicated lack of remorse. He settled on a discount of 20 per cent, resulting in the sentence of seven years and three months.
The appellant advanced a ground of appeal that the judge erred in reducing credit for plea to 20 per cent on the basis that he had absconded. The single judge refused leave on a disparity argument, noting that the sentencing judge’s approach was if anything overly favourable to the appellant and that the Court of Appeal has indicated in R v Broadbridge (1983) 5 Cr App R (S) 269 that a second judge should pass the sentence considered appropriate and leave the Court of Appeal to address any disparity argument.
The Court of Appeal held that the judge’s approach to credit for plea was flawed. The court referred to R v Banasik [2011] EWCA Crim 140, in which this court held that the fact that an appellant fled the jurisdiction and remained at large for over two years was properly a factor to be taken into account as a seriously aggravating feature in determining the seriousness of the offence, but to take it into account further in substantially reducing credit for guilty plea meant there was an element of double counting. Credit for plea must be a quite separate matter from the facts of the case, its seriousness and the aggravating and mitigating features. The court noted that although Banasik was decided under the previous guideline there was nothing in the current one to suggest the position had changed. However, in Banasik the court nonetheless dismissed the appeal on the basis that the offending merited a longer sentence after trial than the sentencing judge had identified, and the sentence imposed could not be assessed as manifestly excessive. The court also referred to R v Saliuka [2014] EWCA Crim 1907, in which the court rejected a disparity argument, stating that one sentencing error is not cured by making another and that undue leniency shown to a co-defendant is no reason for reducing a perfectly proper and otherwise entirely appropriate sentence.
The court held that the length of sentence after trial identified by the Recorder when sentencing North was inexplicably lenient and that Judge Drew should have proceeded to impose what he considered to be the correct sentence for the appellant in the circumstances and his particular role in accordance with Broadbridge. Instead, the judge considered that he should be loyal to the approach adopted by the Recorder but sought to reflect the aggravating feature of the appellant’s absconding by reducing the credit for guilty plea applied to what was an artificially low assessment of that which the offence merited after trial. He was wrong to proceed in that way. Absconding to avoid arrest does not amount to a factor that can operate to permit a court to reduce the level of credit for plea. The exceptional circumstances that may permit adjustment to the normal levels of credit arising from the stage at which a plea is entered are set out at section F of the current guideline and do not encompass a situation such as this. The judge should have allowed the appellant the benefit of the full one-third reduction arising from his timely plea irrespective of him having spent four years in Spain hiding from justice. That factor, if it was to be taken into account, should have featured when the judge was deciding on the length of sentence after trial and before applying credit for plea.
The court concluded, however, that notwithstanding the judge’s error it was impossible to say that the sentence actually imposed should be assessed as manifestly excessive. Even with credit for plea being impermissibly limited to just 20 per cent, the actual sentence was significantly shorter than the appellant should have received. A sentence shorter than it should have been is not to be converted into one that has to be assessed as manifestly excessive just because a co-defendant sentenced by a different judge also received a sentence that was too short. Whilst there may be some situations where the disparity between defendants is so gross that it requires intervention on appeal, the court did not consider that such was the case here. In short, despite attractive submissions by Mr Trembath QC on the appellant’s behalf, the appeal against sentence was dismissed.
R v Banasik [2011] EWCA Crim 140
Saliuka [2014] EWCA Crim 1907