R v Christian Topor & Anor

LORD JUSTICE DOVE: On 8 April 2025 at the Canterbury Crown Court, both of these appellants, who are brothers, pleaded guilty to a charge of fraudulent evasion of a prohibited substance, contrary to section 170(2) of the Customs and Excise Management Act 1979 .

On 9 May 2025 they were sentenced to 15 years and six months' imprisonment, as well as the levying of the statutory victim surcharge in the sum of £228.

They appeal against their sentences with the leave of the single judge who also granted an extension of time to enable the appeal to be heard.

On 17 November 2024 a Romanian Mercedes van was stopped at Dover. Christian Topor was the driver of the van. Sebastian Topor was his passenger. When they stopped they explained that they were travelling to Cumbria and when challenged about it they said that they had no drugs on board.

The van was scanned and an anomaly detected in the roof space. When this was investigated it was revealed that there was in total 161 one kilogram packages of cocaine stowed in the roof space. Sebastian Topor's phone was subsequently examined and the findings that it disclosed made clear that he had been engaged in transporting packages around Europe for the previous two weeks. In addition, the investigations demonstrated that Sebastian Topor's DNA was present on the cords which were securing the packages in the roof.

In interview with the police both brothers denied their involvement in the offences. The evidence before the court suggested that the drugs had a wholesale value of around £4.5 million and a street value of in excess of £14 million. The drugs, when tested, were found to be of very high purity.

Both of these appellants are of good character. Christian Topor is aged 26 and his brother Sebastian is aged 22. After entering a not guilty plea at the plea and trial preparation hearing, before the trial date arrived a change of heart was indicated and both appellants attended to plead guilty on 8 April 2025 as has already been noted.

When sentencing the appellants, the judge approached the case on the basis that the involvement of each of these appellants was indistinguishable from each other. The judge concluded that the appellants had a significant role in terms of the categorisation of role in the relevant sentencing guidelines. He based that conclusion on a number of features of the case. First, both appellants were trusted, it was obvious, by serious organised criminals with a very large quantity of class A drugs. Secondly, both appellants would have an understanding of the scale of the operation in which they were involved given the contents of the text traffic which emerged from the police investigation and the evidence demonstrating that Sebastian Topor had been responsible for loading the drugs into the van. Thirdly, both appellants would have stood to gain very substantially from their involvement in this offence.

The sentencing guidelines provide guidance which is based on a quantity of one kilogram of class A drugs being involved in the offence. The guideline provides that for such a category of offence the starting point is 10 years' imprisonment with a range of nine to 12 years' imprisonment.

In passing sentence the judge noted that the guidelines also provide: "Where the operation is on the most serious and commercial scale, involving quantities of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate depending on the offender's role. “The judge noted in his sentencing remarks that in this case the quantities were no less than 32 times the quantity on which the guideline was based. Taking all of these matters into account, the judge concluded that the sentence after trial would have been one of 20 years. He reduced that by seventeen-and-a-half per cent to reflect the pleas that the appellants had entered, leading to the imposition of the sentence of 15 years and six months.

In support of the appeal, Mr Jowett in his careful and well-structured submissions both orally and in writing, first submits that the judge was wrong to accept the prosecution case that these appellants occupied a significant role in terms of the guidelines. In essence, the appellants were couriers. They were not engaged in the organisation of the purchase and distribution of the drugs, nor did they own or control the drugs. The category into which they should be placed should not be elevated by the quantity of the drugs involved.

The question which these submissions gives rise to and the difficulty in our judgment for these appellants, is whether the judge applied the guidelines accurately. Like the single judge, we are satisfied that the judge accurately reflected the guidelines in reaching his conclusion that he could accept the prosecution's submission that the appellants occupied a significant role.

The guidelines describe culpability as being demonstrated by "one or more" of the characteristics that they then subsequently set out. Here the judge was, in our judgment, entitled to find on the facts that there was an "expectation of significant financial or other advantage" and also "some awareness and understanding of the scale of the operation". That judgment is not affected by the absence of a finding that these appellants were in some kind of managerial or controlling role. It is a judgment which faithfully follows the approach taken by the guidelines and faithfully applies them in the context of a finding that there were one or more of the relevant characteristics identified by the judge. The judge gave, in our view, entirely and perfectly adequate reasons which were not, it will be clear from what has already been observed, solely based on the quantity of drugs. Thus his conclusion that the appellants played a significant role was, in our view, unimpeachable. It is not possible to say that the judge elevated the appellants' role to a significant role on the basis of the drug quantities, he did not do so. The quantity of drugs was an obviously material consideration to his assessment but the judge relied on other evidence to arrive at the appropriate overall appraisal of the appellants' involvement.

The principal ground and the ground for which the single judge granted permission to appeal is that the uplift from a starting point of 10 years in accordance with the one kilogram quantity guidelines to a starting point of 20 years was manifestly excessive.

We have considered this submission carefully but we are unable to accept it. As the judge observed, and as we have already noted, the starting point in the guidelines is based upon one kilogram of class A drugs and the amount of drugs involved in this case was very many times that amount. The quantity of drugs was undoubtedly redolent of an operation that was on "the most serious and commercial scale". It was therefore of a nature the guidelines contemplated would justify far longer sentences of "20 years and above" to reflect the massive scale of societal harm that this quantity of drugs would cause, both directly in terms of the lives destroyed by addiction and also as a consequence of the corrosive effects of the thefts and violence which are fuelled by the illicit trade in drugs.

During the course of his submissions both here and below, Mr Jowett has sought to advance the argument that one can extrapolate from the table in the guidelines and from that extrapolation determine that it is appropriate in this case for a starting point to be taken at 17 years rather than the 20 years which were taken by the judge.

In our view this is not a legitimate approach to the contents of the guidelines. The guidelines cannot be extrapolated arithmetically in the way in which Mr Jowett has undoubtedly, with care and ingenuity, sought to do. The reality of the sentencing exercise in cases of this kind is that the court will arrive at an appropriate sentence as an exercise of judgment, deploying the guidelines appropriately in order to frame and shape that judgment to arrive at a just and proportionate sentence. The guidelines, it has already been stressed, contemplate that there are significant cases which will justify lengthy sentences to reflect the overall level of the harm caused by the very significant quantities of drugs involved. The guidelines are designed to guide that judgment and in guiding it have made clear that where the court is dealing with cases which are redolent of operations of the most serious and commercial character, then sentences of 20 years and more will be appropriate. There is no reference that suggests that any kind of arithmetical extrapolation will enable the court to arrive at the correct answer as to the just and proportionate sentence which is required. Thus, we are unable to accept the submission that the starting point of 20 years was one which was manifestly excessive.

We accept the matters advanced by Mr Jowett in relation to the personal mitigation which is available to these two relatively young men who find themselves facing very lengthy prison sentences, but our analysis demonstrates, as did the judge below, that in short the sentences imposed for this offence cannot be properly criticised and faithfully and correctly reflects the relevant sentencing guidelines which have to be imposed in respect of sentencing those who are engaged in serious and commercial scale drug operations.

For all of these reasons, and notwithstanding Mr Jowett's able submissions, this appeal must be dismissed.