SUPPLY
Volume 2
353.12a
Role, Determining
R v Khatib 2013 EWCA Crim 566 D pleaded to supplying class A drugs (×7). On seven occasions, an
undercover officer arranged to buy drugs from D, and met him to carry out the transaction. Each ‘deal’
cost £15. On six of the occasions, the drug was heroin and on the seventh it was crack cocaine. D had
become involved with drug dealing when he built up a debt for cannabis which he could not pay. D was
aged 18 when the offences were committed and 19 at sentence. He had no previous convictions. He
explained to the probation officer that he supplied drugs to around 10-15 people a day, for which he
received a £10 or £15 reduction in his debt. He started dealing at the end of February and finished in
March when the debt was repaid. He explained that his dealer had given him a patch of a few roads to
cover and he was instructed where to attend in order to supply drugs. The Judge described him as a runner
and made the role ‘significant’, because of the two types of drugs on seven occasions over two weeks.
The range was 3½ to 7 years and he started at 4½. With plea he gave 3 years. Held. The Judge’s reasons
for role went to the level of harm and not to role. D was clearly motivated by financial advantage and
must have had some awareness and understanding of the scale of what was clearly a large operation. In
contrast, D performed a limited function under direction. It was a lesser role. There was an element of
pressure from the dealer. Placing D into category 3, at the higher end, was reasonable. Taking account of
D’s age and good character, 2½ years’ YOI.
R v Samuel 2013 EWCA Crim 931 D pleaded to possession of cocaine with intent. His basis of plea was
rejected by the Judge. The submission was that had it been accepted, the Judge would have been obliged
to sentence him as playing a lesser, not significant, role. The Judge described him as ‘the local controlling
hand’. Held. para 7 It was wrong to consider that one or more factors in the ‘lessor role’ list will
automatically place a defendant in that category. The task of the sentencing judge is to analyse carefully
all the various factors listed in the various categories and then place the offender in the category which
best reflects the offender’s role.
353.22a
Conspiracies
R v Khan and Others 2013 EWCA Crim 800 The defendants pleaded to conspiracy to supply cocaine.
Held. The court is entitled to reflect the fact that the offender has been part of a wider course of criminal
activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing
his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her
awareness of the scale of the enterprise in which he is assisting, the greater his culpability. A particular
individual within a conspiracy may be shown only to have been involved for a particular period during
the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise
to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should
have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be
appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better
reflecting the reality.
353.29a
Music festivals, Selling at
R v Bush 2013 EWCA Crim 1164 Teenagers go to summer music festivals in groups and are particularly
vulnerable to those trying to sell drugs. Anyone who is involved in such an enterprise, even on a relatively
low level basis, must expect an immediate custodial sentence.
353.30a
Persistent offenders
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R v Kotun 2013 EWCA Crim 1039 D pleaded to supplying class A drugs (×4). D supplied undercover
police officers with heroin (143mg, 100mg and 148mg) and crack cocaine (132mg) over the course of
two months. D was a street dealer and was able to source drugs to sell to people, whether they asked for
them or not. D had a very bad record. In 2000, 2003 (×2), 2004 and 2007 he was convicted of possession
of cannabis with intent (imprisonment on all but one occasion). In 2009 he was convicted of heroin
supply and subsequently heroin and crack cocaine supply (6 years). It was argued that had the minimum
sentence provisions applied, the sentence would have been 7 years less 20% for the plea. D was in fact
sentenced to 7 years. Held This was a category 3 case and D’s role was significant. The offences were
committed on licence. We have no doubt the Judge was fully justified in sentencing at the top of the range
and indeed somewhat above it. The starting point taken by the Judge took this case into a category
appropriate for either a greater role or quantity of drugs than applied in this case. The appropriate starting
point was 7½ years. With the plea, 5 years not 7.
353.33
Prisoners, Supply to
Cannabis
See also: R v Bayliss and Others 2013 EWCA Crim 1067 (Pleas to supply of class B (cannabis) and class
C (buprenophrine). Supply into prison by family members via post. Numerous occasions. 1.5 grams of
buprenorphine. Over a 2-month period. Numerous phone calls to arrange the supply. Cards sent to other
inmates to avoid detection. 20% credit. It was category 4. Leading role. 2½ years for the prisoner who
instigated the offences not manifestly excessive. 10 months for the two family members with young
children.)
353.40a
Cannabis
Street supply
R v Tahid 2013 EWCA Crim 613 D pleaded (full credit) to possession of cannabis with intent to supply.
Police saw D riding his bicycle and talking on his mobile phone. Later he was seen standing next to a
stationary car, astride his bicycle, apparently talking to the driver through the window. As one of the
officers approached him, he dropped a package on the floor which contained 6.31 grams of skunk
cannabis. When his home was searched, a further 70 grams were found, along with a quantity of self-seal
bags. In interview, D claimed the drugs were for his own use. D, aged 23, had a conviction for possession
of cannabis (2008) and a caution for possession of cocaine and cannabis (2007). D was unemployed and
lived at home. D’s basis of plea claimed social supply. That was rejected and the Judge found that D was
a street dealer. He treated D as playing a significant role and placed him into category 3 in the guidelines.
A letter from D’s GP stated that he suffered myofascial pain and had told the doctor that he used cannabis
as relief. Held. Starting at 12 months, 8 months, not 10 months.
Class B drugs Other
353.44a
Class B drugs Other
R v Howland 2013 EWCA Crim 1448 D pleaded to possession of class B with intent to supply. D’s
girlfriend was stopped by the police. Her home was later searched and police found 667 grams of white
powder. D went to the police station the following day to accept responsibility for the drug and make
clear that it was not his girlfriend’s. He said he believed it to be MCAT but in fact it was pentedrone,
which had a similar chemical composition. It had a street value of over £8,000 if sold in single deals but a
value of around £4,000 if sold by the ounce. D’s basis asserted that he only sold to friends without
making a profit. A Newton was ordered but a couple of days before the hearing D conceded that he sold
the drug making a ‘modest profit’. D, aged 24, had convictions for cannabis cultivation and possession of
cannabis with intent (2010, suspended sentence) and supplying class B drugs (2011, 9 months). Held.
This was a category 3 offence. The Judge found that D had played a significant role. This gave a starting
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point of 1 year. It was correct to raise that due to D’s convictions; around 20 months was appropriate. D
was entitled to 25% credit because of his abandoned basis of plea. 15 months not 2 years.
353.47 Cocaine/Heroin
Class A
Less than a kilo
R v Gaffney 2013 EWCA Crim 535 D pleaded at the PCMH to possession of cocaine with intent. Police
officers were on the lookout for a vehicle believed to be involved with drug supply. D was stopped whilst
driving his car. The vehicle was searched and nothing found. D was sat in the rear of the police car and
was ‘fidgeting’. He was told to get out of the car and a bag containing 30.21 grams of cocaine (estimated
street value £1,558) was found where he had been sitting. D claimed it was not his. His home address was
searched and a set of scales, sandwich bags and disposable gloves were found. D, aged 37 at appeal, had
26 offences between 1993 and 2007. They included possession of class A and C with intent to supply (12
years). He was released on licence in August 2012 but recalled after being charged with this offence. The
Judge placed D in category 3, significant role. Held. It was noteworthy that he was on licence for previous
relevant offences whilst he committed this offence. With a range of 3½ to 7 years, starting at 6 years was
appropriate. With full credit, 4 years not 5.
353.47a
Cocaine/Heroin
Class A
Couriers
R v Adekunle 2013 EWCA Crim 415 D was convicted of possession of heroin with intent to supply. He
was stopped whilst driving from Liverpool to London. When asked whether there was anything in the car
that should not be there, he indicated a bag behind the passenger seat. It contained three compressed
vacuum packed blocks of heroin. The total weight was 2.99 kilos at 13% purity, equating to 388 grams at
100%. The street value was over £298,000. When asked what was in the bag, D said, “I don’t know. They
just told me to go and collect something.” D, aged 49 at appeal, was a Nigerian national with no
convictions or cautions. Held. The Judge placed D’s role between the lesser and significant role
categories. That is a fair summary considering that he was a courier dealing with a very substantial
quantity of drugs. However, the Judge failed to take account of his previous good character, the fact that
D was a family man and had been in employment and that this offence appeared to be a one-off journey. 6
years not 8
353.47b
Cocaine/Heroin
Street dealing
R v Khatib 2013 EWCA Crim 566 D pleaded to supplying class A drugs (×7). On seven occasions, an
undercover officer arranged to buy drugs from D, and met him to carry out the transaction. Each ‘deal’
cost £15. On six of the occasions, the drug was heroin and on the seventh it was crack cocaine. D had
become involved with drug dealing when he built up a debt for cannabis which he could not pay. D was
aged 18 when the offences were committed and 19 at sentence. He had no previous convictions. He
explained to the probation officer that he supplied drugs to around 10-15 people a day, for which he
received a £10 or £15 reduction in his debt. He started dealing at the end of February and finished in
March when the debt was repaid. He explained that his dealer had given him a patch of a few roads to
cover and he was instructed where to attend in order to supply drugs. The Judge described him as a runner
and made the role ‘significant’, because of the two types of drugs on seven occasions over two weeks.
The range was 3½ to 7 and he started at 4½. With plea he gave 3 years. Held. The Judge’s reasons for role
went to the level of harm and not to role. D was clearly motivated by financial advantage and must have
had some awareness and understanding of the scale of what was clearly a large operation. In contrast, D
performed a limited function under direction. It was a lesser role. There was an element of pressure from
the dealer. Placing D into category 3, at the higher end was reasonable. Taking account of D’s age and
good character, 2½ years’ YOI.
353.48 Cocaine/Heroin
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Pre-guideline cases
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R v Hartley and Dale 2013 EWCA Crim 542 H and D were convicted of conspiracy to supply cocaine,
heroin and amphetamine. Between 2005 and 2008, D headed a criminal organisation that imported and
supplied nearly 36 tonnes of chemicals. The chemicals were sold to drug dealers on a nationwide basis
and used as cutting agents. Evidence suggested that the chemicals were to be used to cut cocaine at a ratio
of 1:1. The resulting powders would therefore have had a street value of no less than £3.5bn. Held. A
drugs supplier at the top of an operation of this scale could contemplate a sentence after a trial in the
region of 30 years.
353.48a
Cocaine/Heroin
Large organisations
Post guidelines
See also: R v Evans 2013 EWCA Crim 889 (Convicted of conspiracy to supply class A, acquiring and
converting criminal property. Kidnapped by criminal associates and reported missing. A police search
found he had modified a van to create storage for drugs. £3m worth of drugs were seized. 23 kilos of
benzocaine, bulking agent for cocaine, found at his work premises. Organised movement of drugs on
commercial scale. Leading role. Aged 76. Numerous previous but not for drugs. Treated as good
character. Starting at 23 years was appropriate. 18 years was entirely correct.)
353.49a
Cutting material
R v Hartley and Dale 2013 EWCA Crim 542 H and D were convicted of conspiracy to supply cocaine,
heroin and amphetamine. Between 2005 and 2008, D headed a criminal organisation that imported and
supplied nearly 36 tonnes of chemicals. The chemicals were sold to drug dealers on a nationwide basis
and used as cutting agents. All of the chemicals were legal at the time. The scale of the enterprise was
enormous. For example, in a 2-month period, D imported over 5 tonnes of benzocaine. Evidence
suggested that the chemicals were to be used to cut cocaine at a ratio of 1:1. The resulting powders would
therefore have had a street value of no less than £3.5bn. D initially used a false name and false identities
to obtain the chemicals and rent storage facilities. Eventually, he used his own company as a vehicle for
larger importations from Asia. In less than a year, he imported more than 10 tonnes of benzocaine, three
tonnes of lidocaine and 625 kilos of paracetamol. D was in regular contact with H, an advisor. H was an
expert in chemicals and their use in the drugs trade. H was also in contact with others associated with
drug dealing, both by phone and through actual meetings and acted as a go-between linking D with drug
dealers. H was in his mid-60s at appeal. He had convictions in 1995 for possession with intent to supply a
class A drug, supplying a class A drug and conspiracy to supply amphetamine (10 years). He also had a
conviction in 2008 for possession of ecstasy with intent to supply (5 years), which was a part of the
conspiracy. D was aged 34 at appeal and of previous good character. Held. D was the organiser of the
conspiracy which ran for about 3 years. He imported massive quantities of cutting agents which had a
significant effect on the drug market. A drugs supplier at the top of an operation of this scale could
contemplate a sentence after a trial in the region of 30 years. A starting point for D of 21 years is in no
way arguably excessive. With a discount for the plea, 18 years. H was a vital adviser in relation to
technical matters relating to the chemical supply. He was also an essential link in the onward supply of
D’s chemicals to drug wholesalers. He was fully aware of the scale of the conspiracy. He played a very
substantial role, but somewhat lower than D. The Judge started at 20 years and deducted the 5 years
served for the ecstasy offence. 11 years was not manifestly excessive.
Note: The decision in R v Whittam and Others 2012 Canterbury Crown Court deals with 143 kilos of bash
(a cutting agent) which would generate 286 kilos of cut heroin. Starting at 6½ years, with plea, 4 years 4
months was imposed. This case does not create a precedent. It just illustrates what has happened in the
past and in Canterbury Crown Court where so many importation cases are heard. See www.banksr.com
Other Matters Other Documents tab for a copy of the decision. Ed.
353.50 Ecstasy
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R v Bush 2013 EWCA Crim 1164 D pleaded to possession of ecstasy with intent to supply. He went to a
music festival and staff overheard a conversation in which reference was made to ecstasy. As a result, D
was searched and found to be in possession of 55 individual bags containing just less than 1 gram of
ecstasy in powdered form each. There was a total of 37.8 grams with a street value of around £1,900. D’s
basis of plea, that his intention to supply arose out of his acting as a custodian for the drugs but that he
was not involved in the sale of the drugs, was accepted. D was aged 21 and of good character. Held. It
appears the Judge adopted the recommended starting point of 3 years and gave full credit for the plea. The
correct starting point was 21 months, which is below the range stated in the guidelines. That reflects the
basis of plea, the mitigation and the quantity of drugs. Teenagers go to summer music festivals in groups
and are particularly vulnerable to those trying to sell drugs. Anyone who is involved in such an enterprise,
even on a relatively low level basis, must expect an immediate custodial sentence. With the plea, 14
months not 2 years was appropriate reflecting the quantity, the basis of plea and the mitigation.
353.50a
Ecstasy
Joint purchase
R v Clare 2013 EWCA Crim 369 D pleaded to possession of cocaine, MDMA (class A) and M-cat (class
B) with intent. A police officer on duty at V Festival saw what he thought was a drug deal. He followed
the supplier to his tent, he found D who had on his person two pots, one containing white powder, one
containing 71 MDMA tablets. His basis of plea was that he and 6 friends had pooled their money in order
to buy drugs to use amongst themselves whilst at the festival. He was in possession of them when the
officer attended the tent. D, aged 24, was self-employed as a roof joiner and had no relevant convictions.
Held. The Judge was correct to treat this as a category 4 case (notwithstanding that the 71 MDMA tablets
would have placed that offence into category 3). He also identified, correctly, the aggravating factor of
drug supply at music festivals. The appropriate sentence was 4 months concurrent on the class A counts
and 2 months concurrent on the class B count, not 12 months (×2) and 4 months concurrent.
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