R v GEE

This is a public version of a confidential judgment delivered at a private hearing. In order to protect the identity of the applicant, it has been necessary for this court to anonymise the judgment and to make a reporting restriction so that nothing which would tend to identify the applicant may be made public. We have given the parties the opportunity to consider a transcript of the confidential judgment, so that they could make representations as to what further modifications might be necessary. Having applied these safeguards, we are satisfied that this open judgment maintains a fair balance between the principle of open justice and the protection of the applicant’s safety.

On 13 September 2023, in the Crown Court, the applicant (then aged 56) pleaded guilty to numerous drug offences on an indictment which we shall call "the single indictment". On 28 February 2024, the applicant pleaded guilty to further drug offences on an indictment which we shall call "the conspiracy indictment". Three further counts on the conspiracy indictment were ordered to lie on the file.

On 6 September 2024, the applicant was sentenced on both indictments by Mr Recorder Cartin who imposed an overall sentence of 11 years' imprisonment. That overall sentence was made up as follows: on the conspiracy indictment, on each of counts 1 to 6 (conspiracy to supply a controlled drug of Class A), eight years' imprisonment; on counts 7 and 10 (conspiracy to supply a controlled drug of Class B), two years and eight months' imprisonment; and on each of counts 12 to 14 (conspiracy to supply a controlled drug of Class C), 12 months' imprisonment. All of those terms of imprisonment were ordered to run concurrently with each other.

On the single indictment, on each of counts 1 and 2 (possessing a controlled drug of Class A with intent), terms of three years' imprisonment, which were ordered to run concurrently with each other, but consecutively to the sentences on the conspiracy indictment; on each of counts 5 and 6 (possession of a controlled drug of Class B with intent), 12 months' imprisonment, which was ordered to run concurrently; on each of counts 3 and 4 (possessing a controlled drug of Class A), no separate penalty; on count 7 (possessing a controlled drug of Class B), no separate penalty; and on each of counts 8 to 10 (possessing a controlled drug of Class C), no separate penalty.

On the conspiracy indictment there was a co-accused, whom we shall call “Mr AB”. After a trial, he was convicted on counts 1, 2, 4 and 5. He was acquitted on counts 3 and 6 to 10. He was sentenced by the Recorder at the same time as the applicant to seven years' imprisonment.

The applicant renews his application for leave to appeal against sentence after refusal by the single judge. We are grateful to Mr Price for his careful submissions before us today.

The applicant and Mr AB, along with a man whom we shall call “Mr EF” and other unidentified individuals, were involved in a long-running and lucrative conspiracy supplying a wide variety of drugs, some controlled and others prescription only, via the Dark Web. The participants in this scheme called themselves "the GH" – a name they used for online marketing purposes. Among the drugs offered for sale were oxycodone, MDMA, cocaine, ketamine, methamphetamine, LSD, magic mushrooms, GBH and GBL.

Customers ordered drugs online and used various messaging platforms to arrange fulfilment of their orders by post, delivery in person, or collection from the applicant. The GH priced their goods in US dollars and customers paid them by various methods, including Bitcoin.

On 5 April 2022, police officers attended the applicant's address. He was present and was arrested. The house was searched and officers found large quantities of cocaine, oxycodone, methamphetamine, psilocin, MMC, MDMA, ketamine and LSD. They also found two iPhones, drug packaging, moulds, unused hypodermic needles, documents relating to cryptocurrency transactions, postage labels, Post Office receipts, a heat sealing machine and unused bags.

At the same time, officers attended a self-storage facility in North London where they searched a unit which had been rented by the applicant since 2017. They found over 3,000 oxycodone tablets, large quantities of GBL and GHB, sets of electronic scales and empty postage bags.

On 13 July 2022, officers attended Mr AB's address, where he was found and arrested. The house was searched and officers found a bag containing a box of oxycodone tablets.

A proportion of the drugs seized from the applicant's address and the self-storage unit were forensically examined and found to comprise: 1.25 kilograms of cocaine, with an estimated value of over £116,000; 3,374 oxycodone tablets, with an estimated value in excess of £57,000; 995 MDMA tablets and 497 grams of MDMA powder, with an estimated value of around £20,000; 287 LSD tablets, with an estimated value of £1,447; 146.19 grams of methamphetamine, with an estimated value of around £10,800; 41.05 grams of psilocin, with an estimated value of £455; 418.41 grams of a mixture of MMC and CMC, with an estimated value of around £18,000; 29.35 grams of ketamine, with an estimated value of £749; 8.77 grams of a mixture between eutylone, methamphetamine and MMC, with an estimated value of £496; 34.65 litres of liquid GHB and 230 grams of GHB powder, with an estimated value of £42,800; and 18.04 litres of liquid GBL, with an estimated value of £22,338.

The total estimated value of the examined proportion of the drugs was £290,923.70. The oxycodone tablets found at Mr AB's address had an estimated value of £2,100.

Telephone evidence included messages between the applicant and Mr EF between April 2014 and March 2022; messages between the applicant and Mr AB between 13 November 2018 and 3 January 2022; messages between the applicant and customers between May 2021 and March 2022; and notes listing quantities of drugs.

Analysis of the messages demonstrated that Mr AB was involved in the GH from November 2018. He assisted the applicant in the packaging and delivery of drugs, as well as managing the proceeds from the sales.

One of the iPhones seized from the applicant's address showed messages between him and GH customers between October 2016 and April 2022; messages between him and a supplier of methamphetamine in October 2019; messages between him and a Brazilian supplier of ketamine and methamphetamine between January and May 2020; messages between him and a supplier of oxycodone between June 2020 and April 2021; notes dated April 2020 and May 2021, setting out a list of customers and the drugs they ordered; notes about cryptocurrency folders, dated January 2021 and May 2021; emails to the applicant from cryptocurrency platforms; and an image file showing a picture of the GH's online contact page.

A MacBook computer seized from the applicant's address was forensically examined. A keyword search of the data stored resulted in 683 matches for "drugs" and 51 matches for "GH". Stored on the device were screenshots of contact details for customers, dated between January 2019 and November 2021; images of what appeared to be controlled drugs in February 2019; a screenshot from October 2020, showing that they had sold goods worth over 47,000 US dollars since April 2019; emails to the applicant relating to cryptocurrency transactions between November 2019 and October 2021; a screenshot of a cryptocurrency wallet with a balance of over £92,000 from April 2021; screenshots of conversations between the applicant and Mr EF about drug supply from August 2021; and screenshots of postal documents from January 2022.

The total number of orders featured in data recovered from the device was 237.

In relation to the conspiracy indictment, the applicant was sentenced on a revised basis of plea, which we have considered in full. We note, however, two particular features. First, the applicant said that his role in respect of the conspiracy was mainly to purchase stock, store and package drugs for delivery. He contributed his own pre-existing stock and purchased fresh stock on terms he considered appropriate. Secondly, he accepted that he had a leading role in the conspiracy. We also note that the indictment period for the conspiracy was 1 April 2016 to 6 April 2022. But the basis of plea, which the Recorder accepted after revisions, was that the applicant ceased to be involved with Mr AB in 2021.

As regards the offending charged on the single indictment, the applicant continued to deal drugs following his arrest for the conspiracy. When police officers executed a warrant at his house on 18 July 2023, they discovered large quantities of controlled drugs.

The Recorder did not have a pre-sentence report before him. A report was and remains unnecessary.

In his sentencing remarks relating to the applicant, the Recorder stated that he had taken into account the relevant sentencing guidelines and had considered all the information that had been placed before him, including two psychological reports about the applicant, and documents relating to the applicant's achievements in prison. He noted the applicant's age and that he had previous convictions. In particular, he had been sentenced to 30 months' imprisonment on 16 March 2015 for 13 offences of possession with intent to supply drugs of Classes A, B and C.

In relation to the conspiracy indictment, the Recorder said that both the applicant and Mr AB were responsible for the online shopfront from approximately 2018 to 2021. They both acted to ensure its continued operation and were involved in the sales that came from it. They were both involved in operating the website.

The Recorder said that it was irrelevant who was responsible for any particular aspect of the website set-up and operation. He said that Mr AB was more involved with the computer based elements of the conspiracy and with managing the cryptocurrency. The applicant was more involved with the holding, obtaining and supply of the drugs. It was their joint plan that the operation should supply drugs directly to users.

In relation to the single indictment, the Recorder set out how, having been arrested, interviewed and released in respect of the conspiracy offences, the applicant continued to sell drugs. When the police searched his home again in July 2023, he had a very significant quantity of drugs, which he accepted he intended to supply to others. There was approximately £20,000 worth of Class A drugs, and around £24,000 worth of Class B drugs.

As regards mitigating factors, the Recorder confirmed that the applicant would receive full credit for his guilty plea on both indictments. He had a diagnosis of ADHD and had various health issues. He had used his time in prison usefully. He was a drug user at the time of his offending, but had completed some "drug-based work packs" in prison. While it was claimed that he was remorseful, the Recorder said that that was less worthy of weight, because he continued to offend after being caught for the first set of offences.

The Recorder applied the sentencing guideline for the supply of a controlled drug. He dealt first with the conspiracy indictment. As regards the element of harm, the Recorder observed that in relation to counts 1 to 6 (relating to Class A drugs), the applicant and Mr AB were selling directly to users. He said that the offences fell at the least within category 3 harm. However, the Recorder was satisfied that the large quantities elevated the offending to category 2.

As regards culpability, the Recorder found that the applicant played a leading role in the conspiracy, which the applicant accepted. He organised the sale of controlled drugs on a significant, commercial scale.

Aggravating factors were his previous convictions, the various quantities and varieties of drugs, and the lengthy period of the indictment.

The Recorder noted that the starting point for a category 2 leading role offence was 11 years' imprisonment, with a range of nine to 13 years. Balancing the aggravating and mitigating factors, he made a modest upward adjustment from the starting point to 12 years in relation to counts 1 to 6. After one third credit for the guilty plea, the Recorder reached the sentence of eight years' imprisonment on each of these counts, with each sentence to be served concurrently, as we have indicated. There is no need for us to rehearse the Recorder's reasoning as regards the shorter concurrent sentences on the remaining counts for the Class B and C drug conspiracies on this indictment.

The Recorder turned to the single indictment and to the assessment of harm in relation to the category A offences. He concluded that the applicant was selling directly to users such that this was category 3 offending.

As regards culpability, he concluded that the applicant had played a leading role, as this was his own operation. Significant financial gain was expected, based on the volume and value of the drugs. He was selling on a commercial scale.

The starting point for a category 3 leading role offence was eight years and six months' imprisonment, with a category range of six years and six months to ten years.

Aggravating factors were the applicant's previous convictions and the fact that he was under investigation for the conspiracy indictment offences when he carried on his drug dealing.

Mitigation was the same as for the conspiracy indictment.

The Recorder stated that there would be a modest upward adjustment on the single indictment, which would give a sentence after trial of nine years’ imprisonment. After full credit for plea, the sentence would be six years' imprisonment, to be served consecutively to the sentences on the conspiracy indictment because it was separate offending. However, the Recorder acknowledged that he had to bear in mind the principle of totality. He reduced the sentence by three years as a mark of a significant reduction for totality. In this way he reached the consecutive sentence of three years' imprisonment. We do not need to rehearse how the Recorder reached the sentences for the other shorter counts on the single indictment, which were ordered to run concurrently with the sentences for the Class A drugs.

For these reasons, the Recorder reached the total sentence of 11 years' imprisonment.

We shall deal with the various grounds of appeal in turn.

Mr Price submits in writing and orally that the Recorder should have placed the applicant at the lower end of culpability for a leading role in relation to the conspiracy indictment. He submits that the conspiracy with Mr AB could not have started or continued to operate without Mr AB's technical skill and control. He submits that in relation to the conspiracy indictment the Recorder elevated the applicant's culpability in a way that was not warranted by the evidence, particularly when compared to his much more generous assessment that Mr AB had only a significant role as handling the technical aspects of the conspiracy, rather than the main supply of drugs.

The Recorder's analysis of Mr AB's role appears generous. The applicant accepted, however, that he himself played a leading role and so he could expect to be sentenced on that basis. There is no reason to suppose that the Recorder misunderstood or applied the wrong approach to the applicant's role, or that he misunderstood the level of his culpability. There is no arguable point about disparity with Mr AB.

In light of his concern about totality, the Recorder took a cautious approach to his upward adjustment from the starting point for a single category 2 leading role offence. His sentencing remarks were clear and well structured. It is not arguable that the overall sentence is manifestly excessive because of some flawed approach to culpability in the conspiracy indictment. This ground of appeal is not reasonably arguable.

Next, Mr Price submits that the Recorder fell into error by distinguishing Mr AB so greatly when it came to harm as well. He emphasises that, in sentencing Mr AB, the Recorder took into consideration that he was not necessarily going to achieve significant financial gain from the supply of drugs, as he consumed so much himself. We agree that this passage of the Recorder's sentencing remarks is hard to follow. There is no obvious connection between using a lot of drugs and gaining less financially, as presumably Mr AB did save – or could have saved – money by using the conspiracy's own drugs. Nevertheless, the Recorder placed Mr AB's offending within category 2 harm for the same reason as he placed the applicant's offending within category 2. His reference to Mr AB's own drug use made no material difference to Mr AB's sentence or to the applicant's sentence. There are no grounds for arguing that this aspect of the sentencing remarks renders the applicant's sentence manifestly excessive or wrong in principle.

Mr Price further submits that the Recorder failed to pay sufficient regard to the applicant's mental health difficulties. The Recorder, however, referred expressly to the applicant's diagnosis of ADHD and to the psychological reports. We do not consider that the Recorder made any error of approach, or that any more detailed exploration of the applicant's documented problems would have made any difference. This ground of appeal has no traction.

This was a case in which the applicant gave some assistance to the police which we have considered in the form of a text.

Mr Price submits, first, that the Recorder does not appear to have made any discount for the applicant's assistance; and secondly, that he ought to have done so by way of a reduction of sentence of between 15 and 25 per cent. He has drawn our attention to examples of other reductions in the judgments of this court. However, each case will turn on its own facts.

We are prepared to adopt the approach suggested by Mr Price. We are willing for present purposes to assume, without deciding, that a discount of somewhere between 15 per cent and 25 per cent was appropriate. We have given careful consideration to all the information in the text.

However, this was very serious offending for which a severe sentence was required. The applicant had, on his own admission, a leading role in a conspiracy sustained over several years to supply multiple kinds of Class A drugs on a commercial scale, using the Dark Web to avoid apprehension. His persistence is demonstrated by the single indictment which represented his continued offending, even after his arrest on the conspiracy indictment.

We agree with the single judge that the overall sentence could have been considerably longer. Even taking account of everything that we have read about the applicant in the papers before us, and everything that we have heard today, the overall sentence was not arguably manifestly excessive or wrong in principle.

Having given independent consideration to the issues, we are in agreement with the single judge that the grounds of appeal are not reasonably arguable. Accordingly, this renewed application for leave to appeal against sentence is refused.