Holland [2019] EWCA Crim 481
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**R v Robert Holland [2019] EWCA Crim 481** concerned an appeal against sentence by the Court of Appeal in which the total sentence for conspiracy to import class A drugs and conspiracy to supply MDMA was reduced from eleven years eight months to nine years eight months.
Mr Holland pleaded guilty to conspiracy to supply class A drugs (MDMA) on 28 February 2017. He initially pleaded not guilty to two counts of conspiracy to import class A drugs, one relating to MDMA and the other to cocaine, but indicated his intention to plead guilty on 9 April 2018 and entered those pleas on 11 April 2018, shortly before his trial was due to commence on 16 April 2018. On 31 May 2018 the Recorder sentenced him to nine years’ imprisonment concurrent on each of the importation counts and three years consecutive on the supply count, making twelve years in total. The following day the supply sentence was reduced under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to two years eight months to reflect the full one‑third discount for the early guilty plea, reducing the overall term to eleven years eight months. The variation had been effected by email rather than in open court. The court noted that in R v Cox [2019] EWCA Crim 71 at paragraph 18 this court had held that any variation should be carried out in open court to ensure open justice, though the defendant need not attend a reduction. However, the failure to hold a hearing did not render the variation a nullity and the court affirmed the varied sentence.
The conspiracy to import involved Mr Holland and a co‑defendant, Arthur. Between August 2015 and February 2016 two parcels were intercepted. On 25 August 2015 a parcel from the Netherlands addressed to a Mr Harper at Arthur’s home address in Wales contained 989 MDMA tablets. On 4 February 2016 a parcel from Germany addressed to Arthur but sent to Mr Holland’s home in Ilkeston, Nottinghamshire, contained 497 grams of cocaine at 70 per cent purity and 1,749 MDMA tablets. When police executed a controlled delivery Mr Holland was not at home but confirmed by telephone that he was expecting a parcel. A search of his house found 98 MDMA tablets and other drugs paraphernalia. Two receipts for other parcels sent to Arthur’s address in Wales were found in his car. Arthur’s home was searched and police recovered over £2,000 in cash, powdered MDMA and dealer’s lists. Mobile telephone evidence showed contact between Holland and Arthur including a text conversation about a parcel having been intercepted by customs, plainly a reference to the August 2015 interception. The separate conspiracy to supply MDMA concerned local street‑level dealing by a man called Wright, to whom Mr Holland supplied drugs over five months from September 2016. Wright had paid Holland a little over £1,500. Mr Holland had no previous convictions and was of positive good character, with a glowing reference from his warrant officer from his time in the Welsh Guards.
The Recorder found that the receipts found in Mr Holland’s car evidenced further drug consignments in addition to the two intercepted parcels. He noted the high purity of the cocaine, indicative of proximity to source, and that the case involved significant quantities of two different drugs. In Mr Holland’s case the judge stated that the sentence after trial would have been fifteen years, comprising eleven years for the importation offences and four years for the supply conspiracy, with reduction for totality. He gave as much credit as he could and reduced the overall sentence to twelve years, later adjusted to eleven years eight months. By contrast, Arthur received a starting point of nine years after trial for the importation offences. When defence counsel pointed out that the Sentencing Council Drugs Guideline range for a significant role in importation of this quantity was up to ten years, the Recorder responded that he had sentenced at the top of significant, equating Mr Holland’s category with Arthur’s. When counsel observed that the category range ended at ten years rather than eleven, the judge stated that the involvement of two drugs explained the flexibility.
On appeal Mr Holland contended that the sentence for the importation offences was excessive in itself and that the total sentence was excessive given the consecutive sentence for the separate supply conspiracy. Mr Watkins appeared for the appellant and Miss Summers for the Crown.
The Court of Appeal held that the harm category for each drug under the importation guideline fell squarely within category 2 by reference to the quantities involved. Mr Holland had an operational role in the chain and was motivated by financial advantage, placing him within a significant role. There was some element of a leading role because he had substantial links to others within the conspiracy, but this had to be regarded in the context of a conspiracy that was relatively modest in scale. The court observed that the bottom of the category range for a leading role was nine years and the upper end of a significant role was ten years. Using the category ranges as a sliding scale, which the court noted was the correct approach, nine years’ custody was the appropriate starting point for the importation conspiracies. The fact that there were two conspiracies involving two different drugs was not significant in the context of this case, particularly as the cocaine and MDMA imported in February 2016 literally came in the same parcel. The court therefore disagreed with the Recorder’s reasoning for going beyond the category range for a significant role. Although the appeal was not put on the basis of disparity, the court could not ignore the starting point applied to Arthur. Miss Summers on behalf of the prosecution could not put Arthur and Holland in significantly different categories in terms of participation or culpability. The reality was that the starting point for Mr Holland should have been the same as that for Arthur, namely nine years’ custody. The Recorder had clearly given 20 per cent discount for the late guilty plea entered before trial, which the court saw no reason to depart from. Rounded down, the sentence in respect of the importation counts should be seven years’ custody rather than nine. Once that reduction took effect, any argument in relation to totality no longer had force, as the imposition of a consecutive sentence for the quite separate supply conspiracy was entirely justified.
In short, the appeal was allowed to the extent that the sentences of nine years on the importation counts were quashed and replaced with sentences of seven years’ imprisonment concurrent, resulting in a total sentence of nine years eight months rather than eleven years eight months.