Tedi Hoxha [2019] EWCA Crim 1706

Tedi Hoxha [2019] EWCA Crim 1706 concerned an appeal against sentence by the Court of Appeal (Lord Justice Flaux, Mrs Justice Whipple and Mr Justice Soole), which was dismissed.

Mr Hoxha, aged 22, had pleaded guilty on 9 November 2018 in the Crown Court at Bristol before His Honour Judge Julian Lambert to being concerned in the supply of a Class A drug, namely cocaine, and to possession of false identity documents. On 7 December 2018 he was sentenced to four and a half years’ imprisonment on the supply count and one year consecutive on the false documents count, giving a total sentence of five and a half years’ imprisonment. Five Albanian co-defendants pleaded guilty to various counts and received sentences ranging from four to five and a half years.

The facts disclosed a sophisticated drugs operation. The defendants were Albanians in the United Kingdom illegally, having paid to be brought from Albania. To repay that debt they operated for about a month in July and August 2018 what the judge described as a slick, sophisticated and highly profitable business retailing cocaine to a large target market. Customers would contact a central line manned 24 hours a day, seven days a week. Once a controller had received a customer request he would use another telephone to contact a courier who carried the drugs and would deliver them. Telephone numbers used to call couriers and used by couriers changed regularly, although the customer line remained constant. The operation was successful. Police monitoring showed an average of 70 customer contacts a day by text or telephone. Cocaine was driven down the M4 from London to Bristol in return for cash from sales.

Police street observations produced six charts detailing six separate incidents of drug dealing and identifying who was involved, tying telephone evidence to observation evidence. Given the number of customer contacts, these six examples represented only a fraction of the total deals. When police moved in on 13 August 2018 they recovered a total of 827.96 grams of cocaine with a street value of £68,440, as well as just over £53,000 in cash. The prosecution said the day the drugs were seized was not exceptional but a fair snapshot of the amount of business the operation conducted on any given day.

The appellant operated as one of the couriers on three of the example deals, one on 1 August and two on 2 August 2018. On 1 August at about 6.30 pm the controller, his co-defendant Kopo, guided the appellant and another co-defendant, Meta, to Greenbank Road in Easton where they delivered drugs to a female customer who got into their car to receive them. Kopo coordinated another deal at about 5.20 pm on 2 August, where the appellant delivered cocaine in Brislington to a customer who again briefly got into the car. Kopo was the controller again on 2 August at 6.33 pm, coordinating the appellant’s delivery of cocaine to a man called Gareth Watkins on Cribbs Causeway. Watkins was stopped by police shortly afterwards and told them he had just bought the cocaine found on him.

When police attended the appellant’s address at 66A Fishponds Road to arrest him, he climbed out of the bedroom window and ran off. He was pursued and detained. He had just over £270 in cash on him. He was connected to a Toyota Yaris. The flat and the car were searched. A large amount of drugs were found in the car and police found that 66A Fishponds Road was where the group was storing consignments of drugs. A total of 790 grams of cocaine of varying purities was found in the property and in the car. Over half was high purity cocaine.

The prosecution contended that all defendants fell within the significant role category of the relevant sentencing guidelines. They knowingly played their part as employees in what they knew to be a bigger illegal business. They were trusted to handle drugs and cash. The couriers had possession of drugs and drugs were found at premises. They concealed their identities using false documentation. They played an operational management function within the chain for financial advantage whilst having some awareness and understanding of the scale of the operation.

The appellant pleaded guilty on a basis of plea that accepted he had acted as a courier and would receive telephone calls telling him where to make deliveries. He was given drugs to sell packaged into street deals. Moneys from the deals would be collected by various people from his address. He was aware of drugs and a Romanian identity card in a shoebox at the bottom of his wardrobe and of drugs in the Toyota Yaris. He was not aware of and had no control over drugs found elsewhere in the property. Prosecution counsel said at the sentencing hearing that the only issue with the basis of plea was that the shoebox was in the same wardrobe in his bedroom as effectively all the other drugs, and the prosecution expressed surprise he had not seen the other drugs given the quantity in the wardrobe. No Newton hearing was sought by either party.

In his sentencing remarks the judge described the operation as sophisticated, with a call centre set up with a dedicated controller receiving requests for cocaine then switching phones to a dealing line to contact couriers. The defendants were forensically aware so telephone numbers used for the dealing line and the couriers were changed regularly whilst customer lines remained constantly open. The supply of cocaine was wide scale with very significant volume achieved, the customer line receiving contact from an average of 70 customers per day. Police recovered 828 grams of cocaine and over £53,000 in cash, which was a fair reflection of the contemplated volume of business. Taking even an ultra-cautious approach, the established quantity involved in the case was tending towards category 2 in the guideline, namely retailing on a large scale to a wide market.

The judge stated that in relation to all the defendants it was necessary to define the extent of individual involvement, which could only ever be a broad assessment of culpability based on all the evidence, including appropriate inferences from basic facts. The prosecution submitted they should each be placed broadly within category 3. Each played an operational role in the supply of drugs contemplating financial gain. Some achieved a managerial position albeit not of the highest order justifying a leading role. All had pleaded guilty and credit of one-third applied. All were of previous good character. All were sentenced in category 3. No separate penalty was imposed for possessing criminal property. Where applicable, for possession of a false identity document, the sentence on a trial would have been 18 months, reduced to one year for plea and imposed consecutively.

Dealing with the appellant, the judge said that the prosecution contended he was a courier but he also had under his control a significant stock of drugs. A search of his address and vehicle revealed a false Romanian identity card bearing his photograph. A large amount of cocaine of varying purity was recovered, showing numerous consignments were stored at his premises. The total quantity of cocaine found both in the car and at the property was 790 grams of varying purities. He had £270 on his person on arrest and another £2,630 was recovered. When interviewed he admitted that he had been offered employment as a drugs dealer and delivered drugs on Friday and Saturday evenings. The Romanian identity card was given to him to use by a Bulgarian male. Those limited admissions were not considered worthy of additional credit to reduce his sentence further, particularly in light of his basis of plea which tended to minimise his knowledge and involvement. The judge did not accept that basis by simple assertion. For category 3, significant role, the sentence after trial would have been seven years’ imprisonment, reduced to four and a half years for plea with a further allowance, with twelve months consecutive for the false identity document, giving a total of five and a half years’ imprisonment.

On behalf of the appellant Mr Rupert Russell submitted that the judge’s starting point of seven years was right at the top of the sentencing range for a significant role in category 3. Whilst it was accepted that the appellant was motivated by financial advantage and had some awareness and understanding of the scale of the operation so that he played a significant role, there was no evidence to support the prosecution contention that he had an operational or management function. He was a courier at the lower end of the supply chain consistent with a lesser role. If the judge had properly balanced the characteristics which fell into different role categories, as he should have done in accordance with the guideline, he would have concluded that the starting point should be towards the lower end of significant role.

Mr Russell submitted that the judge was clearly influenced in starting at the top of the category range by the fact that the majority of the drugs were stored at the appellant’s premises, but it had not been alleged he was a warehouseman or had all the drugs in his control. Whilst it was accepted he had the drugs in shoebox 1 found at the bottom of his wardrobe, of which he admitted he was aware, there was nothing to support the assertion that he had control over the other drugs. His fingerprints were not found on them. Two-thirds of the drugs found were stored in different places to shoebox 1: 433 grams in Tesco bags on a shelf on the top of the wardrobe and 99 grams in a drawer in the kitchen. He had told police that two other Albanian men were sleeping at the premises and evidence of their presence was found.

Mr Russell submitted that even if the appellant was aware that more drugs were being stored on the premises, there was nothing to support an assertion that he had control over them. As a matter of common sense, if he had been high enough in the operation to be entrusted with nearly 800 grams of cocaine, he would not have been performing the lowly role of courier. It was not disputed that he had only arrived in the United Kingdom weeks earlier so would not have had time to move higher up the organisation. The starting point of seven years was joint highest together with Festim Hoxha, also a courier, so the judge must have concluded that the appellant was in a managerial position, yet there was no evidence to support that conclusion. Moreover, the judge had taken a starting point for the two controllers of six years, which was illogical if they were controlling the movements of the appellant.

The Court of Appeal rejected those submissions. Lord Justice Flaux held that the judge rightly found that this was a group operation by these defendants, a sophisticated operation involving the supply by the defendants of large quantities of cocaine every day. The fact that some of the defendants took the orders for supplies of cocaine and passed on the information as to how much and where to the other defendants did not mean that the controllers were controlling the couriers and had a more significant role in the way Mr Russell suggested. The judge was entitled to conclude that all the defendants played an operational role in this sophisticated drugs operation. The drugs were stored at the appellant’s premises and the vast preponderance of them were in the wardrobe in his bedroom. The appellant’s case in his basis of plea that he was only aware of the drugs in shoebox 1 but not the drugs in another shoebox or in Tesco bags, which were in the same wardrobe, was incredible. But even if Mr Russell was right that the judge should only have sentenced on the basis of plea, the court considered that the judge was entitled to infer that all the drugs in the house were under the control of the appellant and that accordingly he had a far more significant role in the operation.

In those circumstances the judge was justified in taking his starting point at the top of the category 3 significant role range, particularly since, as the judge himself noted, this was retailing on a large scale which, on one view, could have been placed in category 2. The starting point of seven years was not too high. The arguments about disparity were also without merit. The judge had considered the material put before him, including the opening note, and conducted a detailed and comprehensive sentencing hearing. The fact that he took a slightly lower starting point for some of the defendants did not give this appellant any legitimate ground for complaint. One obvious reason for the higher starting point in the case of the appellant was that the substantial quantity of drugs found in his house was under his control.

In short, the sentence was not manifestly excessive and the appeal was dismissed.