R v David Simpson & others

JurisdictionEngland & Wales
JudgeLORD JUSTICE KENNEDY,MR JUSTICE DYSON
Judgment Date04 December 1997
Judgment citation (vLex)[1997] EWCA Crim J1204-17
Docket NumberNo: 97/1151/W4, 97/1153/W4, 97/1262/W4, 97/1263/W4,
CourtCourt of Appeal (Criminal Division)
Date04 December 1997

[1997] EWCA Crim J1204-17

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Before:

Vice President of the Queen's Bench Division

Lord Justice Kennedy

Mr Justice Dyson

and

His Honour Judge Mellor

(Acting as a Judge of the CACD)

No: 97/1151/W4, 97/1153/W4, 97/1262/W4, 97/1263/W4,

97/1314/W4, 97/1989/W4

Regina
and
David Simpson (Aka Gowling)
Anthony Fadden
Gary Dixon
Stephen Grant
Lawrence Lillie

and

Michael Allsopp

MR A HAWKS appeared on behalf of Simpson

MR C BENSON appeared on behalf of Fadden

MR C SUTTON-MATTOCKS appeared on behalf of Dixon

MR T FINCH appeared on behalf of Grant

MR J ANDERS appeared on behalf of Lillie

MR R TITHERIDGE appeared on behalf of Allsopp

MR A MITCHELL appeared on behalf of the Crown

LORD JUSTICE KENNEDY
1

In this case so far as Allsopp and Dixon are concerned those were renewed applications, we grant the applications and they now are treated as the appeal.

2

Mr Justice Dyson will give the judgment of the court.

MR JUSTICE DYSON
3

These six defendants all pleaded guilty at Newcastle Crown Court to offences in connection with their participation in a well organised drug syndicate. It seems that the syndicate was based in the South London area and during 1995 was raising the sum of at least £500,000 every two or three weeks principally from selling class A drugs. The money was taken to Ireland where it was laundered or used to facilitate the purchase of drugs, or both.

4

Simpson made regular trips to Ireland with the proceeds. On 22nd July 1995 he travelled from Newcastle to London. Two days later Fadden and Lillie brought £540,000 in cash to the hotel room where Simpson was staying. The money was the proceeds of drug trafficking. The following day Simpson took the money in a suitcase to Heathrow Airport. He boarded a flight to Dublin and was arrested shortly before departure. In interview after initially denying his involvement he made admissions to the police. He was charged with conspiracy to possess the proceeds of drug trafficking. He was sentenced on the agreed basis that he had made five previous trips taking drug trafficking money to Ireland, the total sum involved being approximately £2.5 million, and that he had been paid £25,000 to £30,000 for each trip. The judge sentenced him to 11 years' imprisonment. A drug trafficking enquiry was made and on 9th April 1997 the judge found that Simpson had benefited from drug trafficking to the extent of approximately £3 million, and made a confiscation order in the sum of £948,662.07 which was to be paid within six months, with a consecutive sentence of imprisonment of four years in default. The single judge refused Simpson's application for leave against the sentence of 11 years' imprisonment, but granted leave to appeal against the confiscation order. We have granted his renewed application for leave to appeal against the 11 year sentence.

5

We shall return to the issues raised by the confiscation order when we have outlined the facts relating to the other five defendants.

6

As we have said Fadden and Lillie delivered the £540,000 to Simpson. They both pleaded guilty to conspiracy to possess the proceeds of drug trafficking. In passing sentence the judge said they represented the Croydon end of the conspiracy. And that it was clear from the tape recording of what was said while they were in a hotel room with Simpson, that they were thoroughly familiar with the workings of the whole drug trafficking organisation. They knew the names and addresses of the people to whom the money would go to be laundered in Ireland, and were familiar with the methods by which the drugs would arrive back in the United Kingdom. The judge said that he was satisfied as regards Fadden that this was not his first or only involvement in the disposal of the proceeds of drug trafficking. Fadden and Lillie were not on the bottom rung of the conspiracy but "very much higher up indeed". He passed a sentence of nine years' imprisonment in the case of Fadden. As regards Lillie he passed the lower sentence of seven years because, first, he considered Lillie's role as subordinate to that of Fadden; secondly, he was not convinced that Lillie had taken part in any drug laundering operation before 25th July 1995; and thirdly, Lillie, unlike Fadden, had the mitigation of a good character. Fadden had previous convictions for a number of offences of dishonesty, but none for drugs related offences.

7

On 9th April 1997 the judge found that Fadden had benefited from drug trafficking to the extent of a sum of not less than £20,000 and made a confiscation order in the sum of £10,000. In relation to Lillie the finding of benefit was a sum of not less than £10,000, and a confiscation order was made in the sum of £8,800. The single judge refused leave to appeal against the sentences of imprisonment but gave Fadden leave to appeal against the confiscation order. Fadden renews his application for leave to appeal against the sentence of nine years' imprisonment, and Lillie renews his application for leave to appeal against his sentence. We have granted those applications.

8

We turn to Allsopp. Following the arrest of Simpson, Allsopp visited him in prison on a number of occasions. They decided that Allsopp would take over Simpson's role as the man from the north who was to communicate with the Croydon end of the operation, and to whom the Croydon people would hand over their proceeds of drug trafficking.

9

On 9th November 1995 Allsopp travelled from Newcastle to London, following a telephone conversation with Grant. At Victoria Station he was handed luggage containing about £500,000 in cash. The notes when tested proved to be positive with traces of class A drugs. He pleaded guilty to a single count of possessing the proceeds of drug trafficking. The judge equated his criminal responsibility with that of Fadden on the basis that, although he was being sentenced for a single offence and not a conspiracy, he was "the front man come November". He renews his application for leave to appeal against his sentence following refusal by the single judge. We have allowed that renewed application. The sentencing judge assessed Allsopp's benefit from drug trafficking in the sum of £519,489.48 and made a confiscation order in that sum payable forthwith, with a five year consecutive sentence of imprisonment in default. There is no application for leave to appeal against the confiscation order.

10

Next we come to Grant who plead guilty to assisting another to retain benefit of drug trafficking. In passing sentence the judge said this at page 4E of the transcript:

"You have pleaded guilty to assisting another person to retain the benefit of drug trafficking and I am conscious that I mentioned earlier that that plea was tendered on a specific basis, that is that both in July 1995 and November 1995 you were asked to facilitate the export of monies out of the jurisdiction by others; that you did not know the amount of the money involved on either occasion and that your role was that of back up in the event of primary arrangements breaking down.

But, on the evidence, I am satisfied that you knew Mr Simpson well, you knew Mr Fadden and Mr Lillie well and Mr Allsopp. You knew their illegal business and you played quite a prominent role within it.

I give you credit for your guilty plea. I am impressed with the testimonials which I read over lunch and I am conscious that you do not seem to have made very much money out of your involvement if your current financial status is anything to go by.

Taking all those matters into account the least sentence I can pass on you is one of six years' imprisonment."

11

No drug trafficking orders were made in Grant's case. The single judge gave leave to Grant to appeal against the six year sentence.

12

Finally Dixon. He pleaded guilty to a count of possessing the proceeds of drug trafficking. He was sentenced to five years' imprisonment. On 9th November 1995 he delivered the sum of £500,000-odd to Allsopp to which we have already referred. He handed the money over on the understanding that he would receive a substantial sum of money. The judge sentenced him on the basis that he had not been involved in drug trafficking on any other occasion, and that although he must have realised that there was a substantial amount of money inside the luggage that he handed over to Allsopp, he probably did not realise how much it was. We have allowed Dixon's renewed application for leave to appeal against this sentence following refusal by the single judge.

13

We shall deal first with the appeals against sentences made by Simpson, Fadden, Lillie, Dixon, Allsopp and Grant before we examine the issues raised by the confiscation orders.

14

It will be convenient to start with Grant's appeal. We have already quoted the judge's remarks. The judge sentenced Grant on the basis that he knew key players in the conspiracy well and that he played quite a prominent role in it. It is submitted that the judge implicitly rejected the written basis of the plea without giving Grant an opportunity to resolve the issues or elucidate his role at a Newton hearing. We think there is force in this submission. The fact that, having accurately repeated the basis of the plea, the judge continued: "…but on the evidence I am satisfied that you knew…" etcetera - and we emphasize the word "but" - shows that the judge realised he was sentencing on a basis which was less favourable to Grant than that stated in or implied by the written basis of the plea. Nevertheless, even on the basis of the plea that was put forward on behalf of Grant, he fell to be sentenced for facilitating the export of the proceeds of drug...

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