JUDGMENT

(Approved)

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1. Lord Justice Singh: The appellants, Cirjanic-Edwards and Ciftdal, appeal against sentence with the leave of the single judge. The applicant Rafique renews his application for leave to appeal against sentence after refusal by the single judge.

2. We should mention one preliminary issue at the outset. We have given consideration to section 156 of the Criminal Justice Act 2003. Subsection (6) provides that the absence of a pre-sentence report in a case such as this does not invalidate a sentence, but that any court on appeal must obtain and consider such a report unless, pursuant to subsection (7), this court is of the opinion that (for material purposes paragraph (b)) in the circumstances of the case at the time before us, it is unnecessary to obtain a pre-sentence report. We reach the conclusion that it is unnecessary in the circumstances of this case.

3. The facts can be summarised as follows. On 9 March 2016 a parcel box containing 127 gms of cocaine, with a purity of 75% and a street value of £15,000 (count 1), and 248 gms of ketamine, with a street value of £5,000 (count 2) was posted from a post office in Orpington, Kent. The parcel was addressed to a “Mr Ali Khan” in Birmingham. Police intercepted the parcel and carried out a controlled delivery on 9 March.

4. At that time, Cirjanic-Edwards and Ciftdal had been under police surveillance. Their movements from two sub post offices located close to one another were observed. The two were seen driving from Crawley that morning. Officers also saw them assemble the parcel box whilst seated in the motor vehicle. This was the parcel later intercepted and found to contain the cocaine and ketamine. Ciftdal's palm print was recovered from the inner wrappings of the box. The intended recipient had been Rafique, who was arrested outside his brother's home on 9 March. Cirjanic-Edwards and Ciftdal were arrested the same day.

5. Officers searched the home of Rafique's brother, where they found the delivered package along with mobile telephones. A search of Rafique's home found nothing of relevance, but two mobiles telephones were seized from him.

6. When officers searched Cirjanic-Edwards' home in Crawley, they found five tablets containing MDMA (count 3). Telephones and a computer were seized from the property.

7. Ciftdal's family home in East Grinstead was also searched. Police seized a number of items, including telephones, a dealer's “tick list”, scales, silver foil, 13.8 gms of MDMA (count 4), 2.21 gms of cocaine (count 5), small quantities of ketamine (count 6) and cannabis resin (count 7). The MDMA and cocaine were of a high purity and had been found in different rooms.

8. All of the seized telephones and computers were interrogated. Numerous emails and chats relevant to the scale of the conspiracies were recovered. Messages between August 2014 and September 2015 were particularly pertinent to counts 8 and 9 on the indictment. They showed that Cirjanic-Edwards had been selling both Class A and B drugs, including MDMA, heroin, cocaine and ketamine on the “Dark Web”. 3Cirjanic-Edwards would receive drug orders online, which would then be posted out to customers. Ciftdal acted as his partner. Rafique had been involved in some of the online chats with Cirjanic-Edwards. The two had discussed commodities including MDMA, heroin and ketamine.

9. In February 2016 Rafique provided his full bank details to Cirjanic-Edwards, which enabled him to make payments into Rafique's account. In one conversation, Cirjanic-Edwards asked Rafique to “do a job” for him in return for £200. The content of the messages showed that Rafique was supplying drugs to others in conjunction with Cirjanic-Edwards.

10. In relation to counts 8 and 9, it was impossible to quantify the weight of drugs actually sold. The evidence indicated that it had been a lucrative, on-going commercial operation, which had been fully operational for over a year.

11. Cirjanic-Edwards had communicated with others to ensure that the website used to sell the drugs was professionally set up and run. There was some indication that he had considered expanding the services offered on the site to include gambling. The drugs were openly for sale on the Dark Web, with samples sent out. Payment was made online, often using the cryptocurrency Bitcoin. Packages were sent to destinations throughout the UK, as well as Austria, the Republic of Ireland and the USA. Foil wrapping was used in the packages to defeat potential x-ray searches by international post. In relation to counts 8 and 9, it was not possible to show that more than 2 kgs had been supplied, but it had clearly been a professional operation. Exchanges between Ciftdal and Cirjanic-Edwards showed that Ciftdal actively assisted Cirjanic-Edwards.

12. Conversation between Rafique and Cirjanic-Edwards were also recovered. One of the messages (dated 28 February 2016) from Rafique was commented on by the Crown's expert, a Mr Gittings. It referred to the breakdown of wholesale quantities of crack cocaine and heroin, worth a total of £3,650, and to a wage of £400 for the previous two weeks. This demonstrated that, by the end of February 2016, Rafique was dealing wholesale quantities of Class A and B drugs for Cirjanic-Edwards and in return was paid a weekly sum.

13. The intercepted drugs passed from Cirjanic-Edwards and Ciftdal to Rafique in 2016 (reflected in counts 1 and 2) were wholesale amounts destined for onward supply. It represented one supply in an operation running for over a year.

14. Despite neither having any legitimately declared sources of income, both Cirjanic-Edwards and Ciftdal had significant sums in their respective bank accounts. Cirjanic-Edwards had £174,000 in unexplained credits over the period of the conspiracy, paid in by cash and Bitcoin transactions. He was also the registered keeper of an Aston Martin Vantage, which had a value of up to £35,000. Ciftdal was the registered keeper of a Range Rover, with a value of up to £32,000.

15. Cirjanic-Edwards and Ciftdal gave ‘no comment’ in their police interviews. Rafique initially gave ‘no comment’ but provided a prepared statement in a later interview, which indicated that he was a drug user who received his monthly supply in his post. 4He had been told by his supplier that there would be an extra package for him to sell but he had not agreed and would not have done so.

16. The appellant Cirjanic-Edwards was aged 26 at the time of sentence, having been born on 8 August 1991. Ciftdal was aged 27. He was born on 7 September 1990. Rafique was aged 26. He was born on 18 April 1991. All three were men of previous good character.

17. Each of the defendants provided a basis of plea in writing. However, we would observe that these were not agreed or signed by those acting on behalf of the Crown.

18. Having entered guilty pleas on various dates — in some cases on rearraignment — all three came to be sentenced by His Honour Judge Tain on 2 February 2018 in the Crown Court at Lewes sitting at Hove.

19. In relation to the appellant Cirjanic-Edwards the sentence was structured as follows. On count 1, which concerned conspiracy to supply a controlled Class A drug, the sentence was one of ten years six months' imprisonment. There was a similar sentence passed on count 8 made concurrent. There were also consecutive sentences passed in relation to count 2. That was three years' imprisonment for conspiracy to supply a controlled drug of Class B (that was the ketamine). On count 3, a sentence of one-year imprisonment concurrent to that sentence; and on count 9, a sentence of three years' imprisonment, again made concurrent.

Thus, making a total of thirteen years six months' imprisonment.

20. In relation to the appellant Ciftdal the sentence was structured as follows:

On count 1 there was a sentence of eight years' imprisonment.

That was also the sentence on count 8.

There were then passed consecutive sentences in relation to other matters, but made concurrent as between themselves; that is, on count 2 a sentence of two years; on counts 4 and 5, a sentence of one year; on counts 6 and 7, a sentence of one year; and on count 9, a sentence of two years. The total was therefore a sentence of ten years' imprisonment.

21. In relation to the applicant Rafique the sentence was structured as follows: On count 1 there was a sentence of six years' imprisonment. The same sentence concurrent was passed on count 8. There were then consecutive sentences passed on counts 2 and 9 of one-year imprisonment made concurrent as between themselves. The total sentence therefore in his case was one of seven years' imprisonment.

22. In his sentencing remarks the judge observed that deterrent sentences were required in a case such as this so as to demonstrate that the profits involved were not ultimately worth the price when a person is caught.

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23. In this case the experts correctly stated that it was difficult to identify more than 2 kgs. At the same time, the Crown said that this was clearly a Category 1 case.

24. The court proposed to outline what the sentence in each case would have been following a trial, then identify the relevant credit for guilty pleas, before passing the appropriate sentence, taking account of the principle of totality, proportionality and addressing the issue of whether sentences should be concurrent or consecutive. The judge considered the case was of the utmost seriousness as it had special hallmarks of professionalism. This was not least because there had been use of the Dark Web. The court, he said, took into account the principle of totality. Each defendant had been of previous good character. However, he considered that this did not help them significantly because of the repellant nature of their drug dealing.

25. The judge said that there was a difficult consideration as to the relationship between Categories 1 and 2 in respect of counts 1–8 and 9 on the indictment. In the case of Cirjanic-Edwards, the court determined that counts 1 and 8 fell somewhere between Categories 2 and 1. Notwithstanding that the suggested range in the Sentencing Guideline for a Category 2 case goes up to thirteen years, the judge said that, had the matter gone to trial, the sentence would have been one of fourteen years' imprisonment on those two counts.

26. The court placed Cirjanic-Edwards as having a leading role, since he was the senior partner in a joint venture. He managed the business and had directed the buying and selling on a commercial scale. There had been the expectation of substantial financial gain.

27. The court concluded that 25% credit for his pleas was appropriate, bearing in mind that he had known all along that he was guilty. That reduced the sentence to ten years six months on counts 1 and 8.

28. Counts 2 and 9, which related to ketamine, although categorised as a Class B drug, could have serious physiological consequences for users. The court regarded it as an entirely separately entity and was not prepared to impose concurrent sentences.

29. The overall sentences would properly reflect Cirjanic-Edwards' criminality. Had there been a trial, the sentences on counts 2 and 9, concurrent to one another but consecutive to the earlier sentences, would have been four years. That would be reduced to three years after giving 25% credit. The total sentence for Cirjanic-Edwards was therefore thirteen years six months.

30. The judge categorised Ciftdal as a partner, albeit one with less involvement than Cirjanic-Edwards. Adopting the same observations made in relation to Cirjanic-Edwards, the sentence after trial would have been twelve years on counts 1 and 2. He was also considered by the judge to have played a ‘leading’ role and not merely a ‘significant’ one. The sentence was reduced to eight years after 25% for his pleas were applied. The starting point for counts 2 and 9 was three years, reduced to two for his pleas, concurrent to one another but consecutive to counts 1 and 8, making a 6total of ten years' imprisonment. A sentence of twelve months was passed, as we have observed, in respect of the other counts, all made concurrent.

31. Rafique was considered to fall within a different category — somewhere between Category 3 and 2 of the guidelines, with an emphasis on Category 2. He had played a ‘significant’ role. The court considered whether there were enough elements to take him down to a lesser role, but concluded that there were not. Had there been a trial, the sentence would have been one of eight years. The sentences on counts 1 and 8 were six years on each. On counts 2 and 9 the sentences were twelve months, concurrent to one another but consecutive to counts 1 and 8. The total, as we have said, was therefore seven years.

32. The court applied a 25% discount for the guilty pleas, observing that, while it was difficult to be precise about credit, none of the defendants was entitled to a full third.

33. We turn to the grounds of appeal which have been advanced on each of the appellants' behalf. Finally, we will turn to the renewed application for leave made by Rafique.

34. First we consider the case of Cirjanic-Edwards, who has been represented before us by Mr Eissa QC. We are indebted to him, both for his written submissions and also for his succinct oral submissions.

35. The first ground of appeal is that a starting point of fourteen years for an offence involving the supply of no more than 2 kgs of Class A drugs was manifestly excessive.

36. We do not accept that argument. At first blush, the judge's comments at page 5 of his sentencing remarks appear odd, in that he stated, first, that this case falls between Category 1 and Category 2, and secondly:

He therefore opted for a starting point that falls in the mid-range of Category 1 (which suggests a range of twelve to sixteen years). However, although it could have been expressed more clearly, we do not think that this approach was flawed, for three reasons.

37. First, the appellant's contention that the judge has misapplied the starting point is undermined by the judge's discussion of Ciftdal's case, later on. He stated that, given that Ciftdal fell between Categories 1 and 2, his starting point would be twelve years. Thus the judge was plainly aware of the sentencing ranges suggested of the different categories, and did not, as the appellant submits, treat the indicative quantities as “cut-off points”. While the reasoning is more implicit than would have been ideal, in relation to Cirjanic-Edwards, the judge seems to have understood the legal landscape correctly, and considered that the factors (which he identified from pages 5–6 of his remarks) pointed towards a higher point for Cirjanic-Edwards, owing to certain factors that differentiated him from Ciftdal. This factual assessment seems broadly one, in our view, the judge was entitled to make.

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38. Secondly, this view is bolstered by the fact that Cirjanic-Edwards pleaded guilty to two serious counts (conspiracy to supply Class A drugs (count 1) and conspiracy to be concerned in the making of an offer to supply Class A drugs (count 8), each leading to a starting point sentence of fourteen years. Individually, perhaps, we consider that the starting point of fourteen years brought the sentences above a starting point reflecting the borderline factors as between Categories 1 and 2. However, employing the principle of totality, the judge was justified in applying such terms to these concurrent sentences.

39. Thirdly, we have to bear in mind that the main offences for which sentences had to be passed were ones of conspiracy rather than substantive offences. This was clearly a professional and commercial operation, which existed for a number of years on the Dark Web. The precise quantities of drugs found were therefore of less significance than might have been the case if sentences had to be passed for substantive offences.

40. Accordingly, although the sentence might be said to be at the upper end of the appropriate scale, it was not, in our judgment, manifestly excessive.

41. The second ground of appeal is that the imposition of a three-year consecutive sentence for an offence involving the supply of 248 gms of ketamine failed to recognise the principle of totality and is manifestly excessive.

42. Again, we do not accept this ground. It seems from the appellant's grounds of appeal (page 8) that this ground encompasses an objection, first, to the imposition of a consecutive sentence and/or, secondly, a failure to apply the principle of totality correctly.

43. The overriding principle in the Sentencing Guidelines in relation to whether sentences should be concurrent or consecutive is that the overall sentence must be just and proportionate. The appellant objects to the apparent “adding together” of two different sentences. But here, we consider that totality was reflected in the fact that Cirjanic-Edwards is to serve concurrent sentences for an array of other serious offences. If the only two offences involved were the supply of Class A drugs and the supply of Class B drugs, then perhaps it might be said that they had been “added together”. But given the number of offences, covering two separate indictment periods, we do not think that this sentence was manifestly excessive.

44. The third ground of appeal, which was adumbrated at least in writing, although not developed before us at the oral hearing, was that the judge ought to have held a Newton hearing if he did not accept the submissions on behalf of the appellant regarding the use of his uncle's Aston Martin and/or legitimate use of Bitcoin by the appellant.

45. We are of the view that the appeal on this ground should be dismissed in any event. The judge in his sentencing remarks appeared to place no weight on the legitimacy of car ownership and expressly stated at page 3 that he did not know about the legitimacy of Bitcoin use, but took it as a given. It does not seem that great weight was placed on these factors, given the focus and other more critical factors at pages 5 and 6 of his remarks.

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46. The fourth ground of appeal is that the sentence failed to reflect the appellant's personal mitigation, in particular that the appellant was of previous good character. Mr Eissa has reminded us at this hearing that he is an economics graduate.

47. Again, we are of the view that the appeal should be dismissed on this ground. The judge was aware that the appellant was a man of previous good character and addressed this at page 4, stating that “it did not help them a great deal” and that it was not a “massive feature”, but noting that “it is a feature and it does help them”.

48. We turn to the appeal in the case of Ciftdal. Again, we are indebted to Miss Gaskin, both for her written submissions and for her eloquent oral submissions at this hearing. She adopted the submissions of Mr Eissa in relation to one of the grounds of appeal, to his second ground, as to whether the sentences should have been consecutive or concurrent. We have already dismissed that ground.

49. The main ground which has been advanced at the hearing before us on behalf of the Ciftdal by Miss Gaskin is that the sentence was passed on the wrong factual basis. In particular, she complains that this was a case in which there had been a written basis of plea served on the Crown. She reminds this court that, at the sentencing hearing on 2 February 2018, the judge was invited to hear evidence from Ciftdal, but the judge did not comment one way or the other, she informs us.

50. The appellant argues that, had the defendant been sentenced on the factual basis set out in his written basis of plea, he would have received a sentence for both the Class A and B offences on the basis that he played a significant role and that the category of drugs fell between Categories 2 and 3. We disagree with the contention that the judge was not entitled to draw the conclusions of a leading role in a Category 1/2 borderline conspiracy from the basis of plea provided.

51. From our discussion of Cirjanic-Edwards' case earlier, it is clear that the judge considered that the offences in counts 1 and 8 fell between Categories 1 and 2. In his basis of plea, Ciftdal does not seem to dispute the quantities of drugs involved in relation to the counts 1 and 8 conspiracy. It is not, with respect, for him, but for the judge to then draw the conclusion as to the categorisation of those offences.

52. We note that, at the hearing on 2 February 2018, in the prosecution's opening of the facts at pages 8–9, counsel who appeared on behalf of the Crown said to the judge that the Crown had filed an addendum to its opening in the case (after having seen the Appellant's basis of plea) and both documents had been served on the defendants. He continued:

It is clear therefore that, so far as the Crown were concerned, there was no agreed basis of plea and they were making submissions to the sentencing judge on a ‘full facts’ basis. In those circumstances it seems to us that, if the defendant wished to have a sentence passed on any other basis, and in particular on the basis of a written basis of plea, that needed to be set out clearly in accordance with the judgment of this court in the well-known case of Underwood [2005] 1 Cv App R(5) 90. Here, there was no such agreement by the Crown. In our judgment the defendant was not entitled simply to rely apparently on the absence of any comment made by the sentencing judge, if that is indeed what occurred.

53. In any event it seems to us that it was a matter for the judge to derive the conclusion as to whether the defendant played a ‘significant’ or a ‘leading’ role. He considered this aspect at pages 6–7 of his sentencing remarks. While he did not expressly set out how the various factors pointing towards either categorisation played out, he did say:

54. Looking at the indicative criteria on page 11 of the Sentencing Guidelines, we consider the judge was entitled to draw the inference of a leading role from the basis of plea. For example, Ciftdal accepts that he “took over” the role of picking up drugs from other individuals and posting them “for a time” while Cirjanic-Edwards was in Spain. It might be said that, in relation to his admission that he was involved in the “supply of gym-supplements and steroids”, the judge could reasonably infer that this involved the “use of a business as cover”. The “few thousand pounds” earned could be categorised “as substantial financial gain”. Thus the judge was entitled to draw the conclusion, even from the basis of plea, that Ciftdal played a leading role, and, in our view, sentenced him appropriately in accordance with this.

55. Finally, we turn to the renewed application by Rafique. We note that he has sent a letter to the court attached to his (original) grounds of appeal, stating that he has parted company with his solicitors and was seeking new representation, after a disagreement in terms of the way in which the appeal had been framed. However, no further notice of appeal has been provided, and so we address the only ground of appeal as originally framed, which is that the discount given for guilty pleas (25% rather than a full third) was insufficient.

56. We are of the view that this ground of appeal should be dismissed. There are three main reasons for this.

57. First, the judge was entitled to infer that Mr Rafique was, at least in part, motivated by a desire to strategically withhold what he stated in his basis of plea depending upon what evidence was served.

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58. Secondly, as his representative noted at paragraph 29 of the advice and grounds of appeal, the Sentencing Guideline at paragraph 8 did not apply to the case at hand.

59. Thirdly, at paragraphs 38 and 39, it is accepted that the overall sentence imposed cannot be said to have offended the principle of totality, or be manifestly excessive. We agree with that analysis: if he was found to have played a significant role in a Category 2/3 borderline case, with two counts served concurrently, the starting point of eight years was not manifestly excessive. The same goes for the consecutive sentences, for the same reasons as given in relation to the other appellants.

60. Accordingly, the result is that the two appeals before this court are dismissed and the renewed application for leave to appeal is refused.