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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference Nos 83 & 85 of 2004 [2005] EWCA Crim 1537 (09 June 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1537.html Cite as: [2005] EWCA Crim 1537 |
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE CALVERT-SMITH
SIR CHARLES MANTELL
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REFERENCE BY THE ATTORNEY GENERAL UNDER | ||
S.36 CRIMINAL JUSTICE ACT 1988 | ||
ATTORNEY-GENERAL's REFERENCE NOS 83 & 85 OF 2004 | ||
(MATTHEW GARDNER & MOHAMMED AFZAL) |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR DOMINIC BELL appeared on behalf of the OFFENDER GARDNER
MR JONATHAN DAVIES appeared on behalf of the OFFENDER AFZAL
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Crown Copyright ©
(i) The Crown's case was that Gardner was a cocaine dealer operating from his home in Hoo, Kent.
(ii) Police officers mounted a surveillance operation upon Gardner's home. On 8 July 2003 Gardner left his home and drove to a nearby country lane where he stopped for a few minutes and then drove away. Police officers went to where Gardner had stopped and found hidden in the hedgerow a plastic box which contained cocaine. A covert video camera was then positioned to record visits to that part of the hedgerow.
(iii) Count 1: on 18 July 2003 police officers opened the plastic box, weighed the contents and took a small sample for analysis. It contained 46 gms of cocaine of unknown purity.
(iv) Gardner visited the hedgerow hideaway on 19, 23 and 24 July 2003 and on two of those occasions he returned to his home immediately afterwards.
(v) Count 2: on the night of 24/25 July 2003 police officers again examined the contents of the plastic box and found powder which they estimated to weigh about 4 ozs or 120 gms. Later, the contents were analysed and found to be 162 gms of powder of which 79.4 gms was cocaine at 100% purity.
(vi) Counts 3 and 4: on 25 July 2003, at about 6.30 pm, Afzal drove Butt to Gardner's home. Butt entered the premises and carried something under his jacket. Just after 7 pm Butt left. He had nothing hidden under his jacket but carried a white carrier bag. Butt returned to the motor vehicle driven by Afzal and they left only to return a few minutes later for Butt to retrieve some cigarettes he had left behind. Gardner came out to meet Butt and the police officers then appeared intending to make arrests and to search the premises.
(vii) Gardner and Butt were immediately arrested. Afzal drove a few hundred yards and then left the motor vehicle and threw into the undergrowth the white plastic bag that Butt had taken out of the offender's house. The bag contained £24,000 in 24 bundles of £1,000 each. Afzal was arrested.
(viii) Police officers, however, were unable to effect an immediate entry into Gardner's home. Gardner's partner, Katrina Wells, remained inside the premises. She locked the front door and proceeded to attempt to dispose of the consignment of cocaine which Gardner had just bought from Butt. It took some five minutes for the police to enter the premises and in the kitchen they found the sink full of milky looking liquid which was draining away. Gardner's partner had sought to dispose of two slabs of cocaine by dissolving them in water. That which remained was placed into two bin liners which, when seized by the police, together weighed 600 gms of which 309 gms comprised cocaine at 100% purity. This was the remainder of the consignment which Butt had sold to Gardner: count 4. £24,000 represents a sale of about 1.3 kgs of cocaine at the then Kent wholesale price of £18,000 per kilo.
(ix) The paraphernalia of the drug dealer was found in Gardner's home: four sets of electronic scales; small resealable polythene bags; a total of 15 gms of which 6.61 gms was 100% pure cocaine; count 3, which was found inside a box and nine resealable polythene bags; £2,580 in cash; and calculations showing lists of "out" and "in" in terms of thousands. The "out" total was over 35,000.
(x) When interviewed, Gardner made no comment to the questions asked of him and submitted a prepared statement in which he claimed that his and his family's safety would be endangered if he answered any questions.
(xi) When interviewed, Butt said that he had nothing to do with the cocaine found in Gardner's home. He said that he had a small amount of cocaine on his person but that was for his personal use only. He said that he had visited Gardner to discuss a consignment of counterfeit clothing and that the £24,000 comprised either his money or money from Gardner for clothes.
(xii) When interviewed, Afzal said that he drove Butt because Butt had a bad neck and could not drive. Afzal said that he thought the meeting was about clothing and denied having anything to do with cocaine. He said that he drove away at the end because he thought Butt was being robbed.
"As I understand, the 309 gms is the weight by way of pure cocaine."
Whereas the judge, as can be seen from the transcript, did on another occasion or occasions interrupt counsel, he did not do so on this occasion. So, Mr Davies submits - and Mr Bell supports him in this submission - the proper way to approach this case is that it only 309 gms was involved in counts 4 to 6.
(i) The quantity of cocaine was significant.
(ii) Gardner and Butt were commercial suppliers.
(iii) Gardner has a relevant previous conviction. On 12 January 1995 he was sentenced to six months' imprisonment for three offences of possessing Class B drugs, amphetamine and cannabis, with intent to supply.
(iv) Butt has a number of previous convictions of which one is particularly relevant. On 25 October 1994 in the High Court of Lille, France, Butt was sentenced to five years' imprisonment for importing a controlled drug. Butt had been arrested on 30 March 1994 on the Antwerp to Lille train when it stopped at Lille. Butt was in possession of 11,500 ecstasy tablets. Butt said that he had received the tablets from Rotterdam and was intending to take them to Calais. He claimed that he was seeking to repay a debt which had been incurred by a friend.
(v) Afzal has a previous relevant conviction. On 17 October 2001, he was fined for possessing heroin. In 1997 he was cautioned for possessing cannabis.
"We have started by asking ourselves what would have been the appropriate sentence if the offender had contested the matter and had known that he was couriering this quantity of heroin. Mr Altman on behalf of the Attorney General has suggested that the appropriate sentence in such circumstances would have been somewhere in the region of seven to seven-and-a-half years. We do not think in any way that estimate is excessive - it may to an extent be conservative."
The court then went on to deal with the allowance for the guilty plea and for the claimed lack of knowledge that what he was carrying was heroin.