Klisdorin Lumnica [2019] EWCA Crim 906
Summary
Klisdorin Lumnica v R [2019] EWCA Crim 906 concerned an appeal against a sentence of 14 years’ imprisonment imposed following a guilty plea to conspiracy to supply class A drugs, namely cocaine. The Court of Appeal (Lord Justice Holroyde, Mr Justice Picken, and Sir David Foskett) dismissed the appeal.
Mr Lumnica pleaded guilty on 22 June 2018 at Kingston upon Thames Crown Court to conspiracy to supply cocaine between November 2017 and May 2018. He was sentenced on 2 November 2018 by His Honour Judge Stephen John to 14 years’ imprisonment. The appellant was aged 24 and had no previous convictions.
The appellant had been under police surveillance and was observed on 17 April 2018 leaving his home with a distinctive blue carrier bag. He drove to a cul-de-sac where an alleged co-conspirator removed the bag from his car. Police stopped the co-conspirator and recovered two blocks of cocaine weighing 2.02 kilograms at 97 per cent purity. Further evidence showed the appellant attending a property in Surbiton on 8 May and text messages indicating he was there twice, with one message to his girlfriend explaining they were counting money. On 17 May police stopped the appellant driving and found half a kilogram of cocaine at 64 per cent purity wrapped in cling film on the front seat. He possessed three mobile telephones and several keys. When his home was searched it was found in an untidy state with crack pipes. One of his keys opened the Surbiton property, where a hidden compartment was discovered containing a ledger book and nearly 9.15 kilograms of cocaine. In interview the appellant made full admissions, explaining he had become indebted to an Albanian man following a failed property investment and was working as a courier and cutter to pay off the debt. The prosecution opened the case on the basis that he had supplied wholesale an estimated 30 kilograms over several months.
His Honour Judge Stephen John sentenced on the basis that the appellant was concerned firstly in the supply on 17 April of 2.02 kilograms of import purity cocaine, secondly in possession with intent to supply on 17 May of about half a kilogram, thirdly in the conspiracy represented by the nearly 9.5 kilograms found at the Surbiton property, and fourthly in the same conspiracy in respect of about a further 18 kilograms supplied during his involvement. The judge stated the sentence would have been the same even absent the admission to the additional 18 kilograms. The judge concluded the appellant had a leading role in a category 1 offence, placing him towards the top of the conspiracy. The extremely high purity of the cocaine indicated he was very close to the import source as none had been cut. Very substantial sums, between £375,000 and £430,000 at wholesale level, must have been required to purchase the drugs. The judge rejected the submission that his role was only significant, stating his leading role indicated a starting point of 14 years within a range of 12 to 16 years. The judge identified that the appellant had substantial links to and influence on others within the chain, had close links to the original source because of the import purity cocaine, had the expectation of substantial financial gain, and had admitted supplying a substantial quantity during the conspiracy period. The judge concluded the sentence after trial would have been 20 years, applying a 30 per cent discount for the guilty plea and admissions made in interview, resulting in 14 years’ imprisonment.
Ms Carolina Guiloff appeared for the appellant and submitted that the judge was wrong to reject the prosecution’s position that the appellant had a significant role rather than a leading role. She suggested the quantity of 30 kilograms was overstated and should have been nearer 25 kilograms, though she did not press this point substantially. She also submitted that the judge failed to take into account the appellant’s addiction to cocaine as a mitigating factor.
The Court of Appeal observed that the judge was wrong to have included the admissions made in interview as justification for going to 30 per cent discount rather than the 25 per cent justified by the plea of guilty at the preliminary hearing. The current guidelines make clear this should not be taken into account in determining the level of discount for the plea of guilty but should be considered separately and prior to any guilty plea reduction as a potential mitigating factor. The net effect of what the judge did, having regard to his final effective starting point of 20 years, was to reduce the overall sentence by 1 year, which the court considered perfectly proper, though it should have been incorporated at an earlier stage in the sentencing exercise. The court treated this as a relatively minor matter.
The court rejected the submission that the judge was wrong to find a leading role. The court acknowledged that the court is the ultimate arbiter of the role a defendant played and is not bound by any agreement between prosecution and defence. The judge was understandably concerned about the high purity cocaine with which the appellant was associated because it indicated he was close to the import source. The court considered the logic of that could not be criticised. Whilst the appellant’s lifestyle, including his addiction to cocaine, made it less likely he had any directorial involvement in the conspiracy, the fact was that he must have been regarded as sufficiently reliable to be entrusted with very valuable consignments of high quantity cocaine, as the delivery on 17 April demonstrated and the arrangements at the flat in Surbiton also showed. The court considered the judge was justified in treating him as having a leading role. Views might reasonably differ about whether he should be treated at the higher or lower end of the sentencing range, but wherever the pointer fell there was the addition to be made for the aggravating features to which the judge referred, albeit tempered somewhat by the mitigating factors.
The court tested the sentence of 14 years by considering it represented a sentence before discount for a plea of guilty, in other words after a trial, of 18 to 19 years, before a 25 per cent discount for the plea of guilty. The court asked whether an overall sentence of 18 to 19 years after a trial for this offence and given all the aggravating and mitigating factors was manifestly excessive. The court did not think so, concluding it reflected the quantity and quality of the cocaine involved and the period of time, some six months, over which the conspiracy existed and the context of the role the appellant played, whilst giving him credit for the admissions made during interview and his previous good character. As to the submission that the judge was wrong not to take into account as a mitigating factor the appellant’s addiction to cocaine, the court considered that was a matter the judge was entitled to consider and in the circumstances reject because of the seriousness of the offence.
During oral submissions Ms Guiloff raised the question of disparity between one of the other co-conspirators, a lady called Amber May. This was not a matter that figured in the grounds of appeal. The court stated that if it were forced to make the decision it would not permit this matter to be raised as an argument, but nonetheless gave it some consideration. Ms May was one of the occupants of the Surbiton property and had allowed the appellant to use her home and specifically her bedroom. The judge had found her role properly described as a lesser one despite her pivotal role in supplying the appellant with the use of her home, concluding she was involved to some extent by naivety or exploitation because of her mental fragility, had no influence on those above in the chain, and performed a limited function under direction. The judge sentenced her to five years’ imprisonment.
In short, the court held that the judge was entitled to find the appellant had a leading role given his possession of high purity cocaine indicating proximity to the source and his being entrusted with valuable consignments, that a sentence of 14 years’ imprisonment was not manifestly excessive, and that no valid disparity argument arose from comparison with the sentence imposed on Ms May.
Mr Lumnica pleaded guilty on 22 June 2018 at Kingston upon Thames Crown Court to conspiracy to supply cocaine between November 2017 and May 2018. He was sentenced on 2 November 2018 by His Honour Judge Stephen John to 14 years’ imprisonment. The appellant was aged 24 and had no previous convictions.
The appellant had been under police surveillance and was observed on 17 April 2018 leaving his home with a distinctive blue carrier bag. He drove to a cul-de-sac where an alleged co-conspirator removed the bag from his car. Police stopped the co-conspirator and recovered two blocks of cocaine weighing 2.02 kilograms at 97 per cent purity. Further evidence showed the appellant attending a property in Surbiton on 8 May and text messages indicating he was there twice, with one message to his girlfriend explaining they were counting money. On 17 May police stopped the appellant driving and found half a kilogram of cocaine at 64 per cent purity wrapped in cling film on the front seat. He possessed three mobile telephones and several keys. When his home was searched it was found in an untidy state with crack pipes. One of his keys opened the Surbiton property, where a hidden compartment was discovered containing a ledger book and nearly 9.15 kilograms of cocaine. In interview the appellant made full admissions, explaining he had become indebted to an Albanian man following a failed property investment and was working as a courier and cutter to pay off the debt. The prosecution opened the case on the basis that he had supplied wholesale an estimated 30 kilograms over several months.
His Honour Judge Stephen John sentenced on the basis that the appellant was concerned firstly in the supply on 17 April of 2.02 kilograms of import purity cocaine, secondly in possession with intent to supply on 17 May of about half a kilogram, thirdly in the conspiracy represented by the nearly 9.5 kilograms found at the Surbiton property, and fourthly in the same conspiracy in respect of about a further 18 kilograms supplied during his involvement. The judge stated the sentence would have been the same even absent the admission to the additional 18 kilograms. The judge concluded the appellant had a leading role in a category 1 offence, placing him towards the top of the conspiracy. The extremely high purity of the cocaine indicated he was very close to the import source as none had been cut. Very substantial sums, between £375,000 and £430,000 at wholesale level, must have been required to purchase the drugs. The judge rejected the submission that his role was only significant, stating his leading role indicated a starting point of 14 years within a range of 12 to 16 years. The judge identified that the appellant had substantial links to and influence on others within the chain, had close links to the original source because of the import purity cocaine, had the expectation of substantial financial gain, and had admitted supplying a substantial quantity during the conspiracy period. The judge concluded the sentence after trial would have been 20 years, applying a 30 per cent discount for the guilty plea and admissions made in interview, resulting in 14 years’ imprisonment.
Ms Carolina Guiloff appeared for the appellant and submitted that the judge was wrong to reject the prosecution’s position that the appellant had a significant role rather than a leading role. She suggested the quantity of 30 kilograms was overstated and should have been nearer 25 kilograms, though she did not press this point substantially. She also submitted that the judge failed to take into account the appellant’s addiction to cocaine as a mitigating factor.
The Court of Appeal observed that the judge was wrong to have included the admissions made in interview as justification for going to 30 per cent discount rather than the 25 per cent justified by the plea of guilty at the preliminary hearing. The current guidelines make clear this should not be taken into account in determining the level of discount for the plea of guilty but should be considered separately and prior to any guilty plea reduction as a potential mitigating factor. The net effect of what the judge did, having regard to his final effective starting point of 20 years, was to reduce the overall sentence by 1 year, which the court considered perfectly proper, though it should have been incorporated at an earlier stage in the sentencing exercise. The court treated this as a relatively minor matter.
The court rejected the submission that the judge was wrong to find a leading role. The court acknowledged that the court is the ultimate arbiter of the role a defendant played and is not bound by any agreement between prosecution and defence. The judge was understandably concerned about the high purity cocaine with which the appellant was associated because it indicated he was close to the import source. The court considered the logic of that could not be criticised. Whilst the appellant’s lifestyle, including his addiction to cocaine, made it less likely he had any directorial involvement in the conspiracy, the fact was that he must have been regarded as sufficiently reliable to be entrusted with very valuable consignments of high quantity cocaine, as the delivery on 17 April demonstrated and the arrangements at the flat in Surbiton also showed. The court considered the judge was justified in treating him as having a leading role. Views might reasonably differ about whether he should be treated at the higher or lower end of the sentencing range, but wherever the pointer fell there was the addition to be made for the aggravating features to which the judge referred, albeit tempered somewhat by the mitigating factors.
The court tested the sentence of 14 years by considering it represented a sentence before discount for a plea of guilty, in other words after a trial, of 18 to 19 years, before a 25 per cent discount for the plea of guilty. The court asked whether an overall sentence of 18 to 19 years after a trial for this offence and given all the aggravating and mitigating factors was manifestly excessive. The court did not think so, concluding it reflected the quantity and quality of the cocaine involved and the period of time, some six months, over which the conspiracy existed and the context of the role the appellant played, whilst giving him credit for the admissions made during interview and his previous good character. As to the submission that the judge was wrong not to take into account as a mitigating factor the appellant’s addiction to cocaine, the court considered that was a matter the judge was entitled to consider and in the circumstances reject because of the seriousness of the offence.
During oral submissions Ms Guiloff raised the question of disparity between one of the other co-conspirators, a lady called Amber May. This was not a matter that figured in the grounds of appeal. The court stated that if it were forced to make the decision it would not permit this matter to be raised as an argument, but nonetheless gave it some consideration. Ms May was one of the occupants of the Surbiton property and had allowed the appellant to use her home and specifically her bedroom. The judge had found her role properly described as a lesser one despite her pivotal role in supplying the appellant with the use of her home, concluding she was involved to some extent by naivety or exploitation because of her mental fragility, had no influence on those above in the chain, and performed a limited function under direction. The judge sentenced her to five years’ imprisonment.
In short, the court held that the judge was entitled to find the appellant had a leading role given his possession of high purity cocaine indicating proximity to the source and his being entrusted with valuable consignments, that a sentence of 14 years’ imprisonment was not manifestly excessive, and that no valid disparity argument arose from comparison with the sentence imposed on Ms May.
The appellant pleaded guilty to conspiracy to supply cocaine, the conspiracy was over a six month period, with an estimated supply during that time of 30kg. His appeal against the sentence of 14 years imprisonment was dismissed.