No: 201702869 A3 
Neutral Citation Number: [2018] EWCA Crim 1415
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 27 April 2018
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE JULIAN KNOWLES 

THE RECORDER OF LEEDS ‑ HIS HONOUR JUDGE COLLIER QC
(Sitting as a Judge of the CACD) 

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R E G I N A 
v 
MICHAEL ANTHONY O'DRISCOLL 

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Mr A Bajwa QC appeared on behalf of the Appellant

Ms C Newell appeared on behalf of the Crown

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J U D G M E N T
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THE RECORDER OF LEEDS:  
1.	On 31 March 2017, in the Crown Court at Kingston upon Thames before His Honour Judge Lodder QC, the appellant pleaded guilty to eight offences.  The matter was adjourned for sentence.
2.	On 26 May, he was sentenced by Her Honour Judge Coello.  The offences fall into three groups.  The first group involved handling stolen property.  On count 1, conspiracy to handle stolen goods, contrary to section 1 of the Criminal Law Act 1977, he was sentenced to 5 years' imprisonment.  On count 2, attempting to handle stolen goods, contrary to section 1 of the Criminal Attempts Act 1981, he was sentenced to 4 years' imprisonment.  On count 3, transferring criminal property, contrary to section 327 of the Proceeds of Crime Act 2002, he was sentenced to 12 months' imprisonment.  All those sentences were to run concurrently.  
3.	The second group of offences involved the supply of drugs.  He received concurrent sentences of 6 years' imprisonment on counts 5, 6 and 7, all offences contrary to section 4 of the Misuse of Drugs Act 1971.  Count 5 was the supplying of a controlled drug of class A to another.  Count 6 was being concerned in the supply of a drug of class B.  Count 7 was the offering to supply a controlled drug of class A to another.
4.	The third group concerned the obtaining of a firearm for use in a robbery.  Counts 8 and 9 were both offences of encouraging or assisting the commission of an offence believing it will be committed, contrary to section 45 of the Serious Crime Act 2007.  The particularised offences were in count 8, the transfer of a prohibited weapon; and in count 9, a robbery.  He was sentenced to 5 years on count 8 and 4 years concurrent on count 9.
5.	The sentence of 5 years on counts 1 to 3; 6 years on counts 5 to 7; and 5 years on counts 8 and 9 were to run consecutively, making the total sentence one of 16 years' imprisonment.
6.	A serious crime prevention order of 5 years after his release from custody was also made.  
7.	As an oversight, no victim surcharge order was made under section 161A of the Criminal Justice Act 2003.
8.	Today he appeals against that sentence by leave of the single judge.  He has been represented by Mr Bajwa QC, as he was at Kingston.

The facts 
9.	Very shortly, the appellant was at the centre of and played a leading role in an organised crime network which dealt with the fencing of stolen goods and the provision of drugs and weapons.  
10.	There were others involved who were also prosecuted on the indictment.  DT Simmons ("DTS") was the appellant's long‑term trusted partner, whose son, DL Simmons ("DLS"), was a trusted lieutenant.  Robert D'Costa was a drug dealer the appellant used to obtain large quantities of drugs.  Kevin Edwards‑Pritchard provided inside information about a warehouse he used to work at, which it was intended would be the subject of a robbery in which a firearm would be used.  Karl Couling provided access to firearms.  

11.	Dealing with the offences in those three groups: 
  
Handling stolen property, counts 1 to 3 
12.	In June 2015, undercover officers were deployed to attend David Simmons Jewellers, which was owned by DTS and run by him and his son DLS.  The first visit by the undercover officer was on 11 June 2015 when he spoke about selling watches.  DLS told him if he came back with paperwork he would increase the price but, if not, it would not matter.  Thereafter, there were frequent visits with watches and jewellery which had no paperwork and which were often wrapped in newspaper or tissue.  They were sold to either the Simmons business or to the appellant at significant undervalue.
13.	The matter progressed from there with other items of jewellery and other watches being provided, and then to a discussion about boxed electrical items.  DTS said that he had a friend who bought everything.  That friend was to prove to be the appellant.  
14.	In October 2015, an undercover officer asked DTS if he knew anyone who might be interested in a quantity of "warm" (ie stolen) Samsung Notebooks.  DTS replied he had a friend up the road ‑ the appellant ‑ who bought "basically everything".  He said he purchased jewellery and watches and the appellant would purchase anything electrical but they should come to him to do the deals because the appellant was not always around but it all came from the same pot.  
15.	Subsequently some televisions were provided and in February a number of boxed Apple products were sold to DLS.  In March, when an officer told DTS they would be getting £60,000 worth of Apple products, DTS replied that he had sold the last product but if it was big quantities, they would get the appellant involved, as he had a friend in Dubai who would take everything.  In April there was a discussion about a consignment of 500 to 1,000 iPhones.  The appellant asked several question and was told he would be provided with a sample.  The appellant then made a phone call to a potential customer of his.  
16.	On 3 May 2016, a sample was taken to the jewellers for the appellant to inspect.  He attended and examined it and said he would give a price before the items were even stolen.  On 1 June, undercover officers informed the Simmonses that the iPhones would be stolen the following Sunday.  Arrangements were then made for the phones to be delivered.  On 9 June, undercover officers handed to the appellant 491 reputedly stolen iPhones worth in excess of £200,000, for which the appellant handed over £35,000 cash in a carrier bag, told them that a further £15,000 was at the jewellers and that he acknowledged that he owed them a further £10,000.  He subsequently told the undercover officers that he had sold the consignment to someone called Tim, who he said was "a proper triad” that had worked with him before and had cleared eight pallets of iPhones worth £700,000.  
17.	In the course of discussing finance for the iPhones, the appellant told the undercover officers that he knew a warehouse that stored designer goods and he also knew one of the drivers ‑ Edwards‑Pritchard ‑ who had information about the times vehicles left the factory and any other information they would need in order to steal from the warehouse.  He asked if that was something they would look at.  The officers informed him they would be interested and the appellant said he would buy the proceeds of the robbery.  The appellant explained that they would have to go tooled up, referring to firearms, as he did not know if someone would be at the warehouse.  If they were, they would have to tie them up.  The officers explained they would need to source tools because they recently had thrown theirs away.  We will return to that in relation to counts 8 and 9 shortly.  

The drugs offences, counts 5 to 7  
18.	On 1 June 2016, whilst discussing the iPhones, one of the undercover officers began to discuss ecstasy pills.  When that subject was raised, the appellant informed them that he had contacts in Amsterdam and could obtain ketamine, cocaine and MDMA in kilo quantities.  He said he was expecting 20,000 ecstasy pills to come within the next two weeks.  He made some phone calls and told the undercover officers a kilo of ketamine would be £11,000, MDMA was £4,000 and he could order it for delivery at the shop.  He said the ketamine would sell faster because it was harder to obtain and he would let them know when it could be obtained.  Subsequently arrangements were made and on 16 June two packages of MDMA were supplied.  That was count 5.
19	On 30 June 2016, two undercover officers attended the jewellers and discussed with the appellant the purchase of ketamine for £11,000.  The appellant provided them with D'Costa's phone number and on 8 July the undercover officers met D'Costa and purchased just under a kilogram of ketamine with a street value of £20,000.  That was count 6.  
20.	On 19 July, the officers attended the jewellers and agreed to purchase 10,000 ecstasy tablets.  That was count 7.  

The robbery and the firearms, counts 8 and 9 
21.	On 19 July, the undercover officers asked to meet the inside agent in relation to the potential robbery.  The appellant offered to facilitate the meeting and agreed to help them obtain firearms for the robbery.  
22.	In the following weeks, the appellant and undercover officers discussed arrangements for the robbery, including remuneration for Edwards‑Pritchard and the obtaining of firearms.  On 20 July, one of the officers made contact with Edwards‑Pritchard and arranged a meeting, where he provided the details of the warehouse, including the layout, what goods would be on the lorries and the best time for the robbery.  
23.	At a subsequent meeting in October, there was a discussion about violence being used against the security guards.  On 21 September, an undercover officer met the appellant and discussed obtaining the firearm.  The appellant contacted Couling and arrangements were made for the undercover officer to collect the firearm the following day, which he did.  That firearm was a converted automatic pistol in working order.  Ammunition was also provided with it but it was not suitable for use in it.  
24.	On 30 September, the undercover officer attended the appellant's shop and told him the bullets did not fit the gun.  There was a discussion about the possibility of buying a further gun from Couling.  The appellant contacted Couling, who came to the shop and arrangements were made to purchase a shotgun.
25.	On 14 October, an undercover officer attended the appellant's shop and told him the robbery was to take place in the first half of November.  The appellant said he would chase Couling about the shotgun and offered the use of his own gun should the one from Couling not materialise.  There was further discussion about ecstasy in which the appellant gave the undercover officer information about how it was transported and said that he used to make ecstasy pills.  
26.	On 31 October, Couling contacted one of the undercover officers and informed him he had a pistol for sale, the shotgun seemingly no longer being available.  On 5 December, the undercover officer attended the appellant's shop to say that the robbery had not taken place because they did not have a gun.  The appellant told them they could borrow his but should return it to him if it was not used.  
27.	On 25 January, the appellant was arrested from his home address, where items seized included £8,500 in cash, a Rolex with the serial number removed and four items of Paul Smith clothing which had been part of a consignment of 55 items that had gone missing between the warehouse in Nottingham and the store in London on 24 November.  
28.	When interviewed, the appellant provided a prepared statement.  He otherwise declined to answer any questions.

The sentence hearing
29.	In passing sentence, the judge said the appellant would have full credit and that he had taken account of the submissions that had been made on his behalf by counsel.  Having summarised the appellant's involvement in relation to these matters, she said that there was no dispute that he fell to be sentenced for performing a leading in role in relation to handling stolen goods.  It was a sophisticated and well‑planned operation.  He involved others in his criminality and was willing to support planned robberies in order to receive stolen goods.  The value of the goods well exceeded £100,000.  He fell within the leading role of category 1 within the guidelines.  
30.	In relation to the drugs offences, again there was no dispute he played a leading role.  The court was satisfied he clearly had close contact with others at the top of the chain of supply in relation to both MDMA and ketamine and had regular access to large consignments.  His culpability had to be assessed on the basis of the totality of offending.  But for that, the case would have been placed at the top end of category 2 and the bottom end of category 1 within the guidelines.  The individual terms for some of the sentences would be substantially reduced having applied the principle of totality.  
31.	He had a number of previous convictions between 1973 and 1990.  In the circumstances, his previous record would not be treated as aggravating the seriousness of his current offending.  The court had considered all the mitigation provided, including his letter, and accepted he was very remorseful for what he done.  He plainly had a good side to his character and was fortunate that he retained family support and love.  The appropriate sentence after trial would have been in the region of 24 years' imprisonment. 

Submissions and initial discussion
32.	The grounds of appeal drafted by Mr Bajwa QC make three points.  First, too high a starting point was taken and he draws attention to what he says is some disparity with others, particularly DTS and D'Costa.  Second, insufficient allowance was made for the extent to which the undercover officers lifted the appellant's criminality into a different scale to that pursued before.  Third, insufficient allowance was made for personal mitigation.  
33.	Mr Bajwa has developed those grounds this morning very succinctly and attractively.  He takes the third point first in relation to the personal mitigation.  He argues that the starting point must have been significantly above 24 years if allowance had been made for personal mitigation and then links that to the next argument he developed, which was that the guidelines really are not much help in a case like this because the real issue is the extent of the overall criminality.  He argues that sentences of this length, 24 years before plea, really only cover offences such as homicide.
34.	In relation to that, we find that  it a difficult argument to accept.  The court is aware of many other offences where sentences well in excess of 20 years are handed down in relation to offences other than homicide and that is particularly the case involving offences relating to firearms.  
35.	The third point that he takes, which he acknowledges is one which needs to be taken delicately, is the role of the undercover officers and he assiduously avoids asserting entrapment but suggests that the involvement of undercover officers elevated his criminality. 
36.	As my Lord, Simon LJ, said in the course of argument: “but surely if anyone else had come to the appellant with such propositions, they would have received the same response.”
37.	We note also, of course, that the involvement that he had is one that was, from all that he was saying, involvement that indicated levels of criminality justifying very significant sentences.
38.	The grounds originally set out by Mr Bajwa were answered by the respondent's notice, which sets out, with reference to numerous passages in the transcripts of conversations with undercover officers, why that argument about elevating the appellant's criminality is unsustainable.  
39.	Ms Newell has taken us to Mr Bajwa's 129‑paragraph advice and grounds of appeal against sentence, in which he sets out those arguments in detail, and deconstructed it paragraph by paragraph by reference to the details of the evidence and particularly to those undercover officer conversations.  It is a substantial piece of work which she has carried out, for which we are grateful.
40.	In assessing these matters, we must consider the definitive guidelines provided by the Sentencing Council in relation to the various offences in the light of the sentencing judge's assessment as to the levels of harm or involvement and the degree of culpability she found them to be and we consider that that is an exercise that must be carried out.

41.	There is no real issue about those levels and degrees, so we turn to the guidelines:  

Handling stolen goods  
42.	The top category is for goods stolen above a value of £100,000.  The judge said that was the case.  Ms Newell puts the figure at £300,000.  These included items of jewellery stolen in dwelling house burglaries, commercial goods stolen to order in bulk, high value electrical goods such as computers and iPhones.  It is very clearly category 1 offending.
43.	As to culpability, the following factors were clearly present: a leading role in group activity, professional and sophisticated offending and in some cases advance knowledge of the primary offence and possession of very recently stolen goods from domestic burglary.  The starting point was therefore 5 years with a range of 3 to 8 years.  The sentence of 5 years means with full credit the starting point before plea was 90 months, seven and a half years, which is towards of the top of the bracket, and justifiably so.  
44.	As to totality, this was the longest running aspect of the offending for which the appellant fell to be sentenced and, as we shall shortly see, significant discount for totality appears to have been given to the other groups of offences.  That we must bear in mind when looking at the overall offending and the overall sentence.

Drugs 
45.	The judge dealt with the case as a category 2 leading role case.  That would result in a starting point of 11 years and a range of 9 to 13 years.  The sentences of 6 years mean with full credit the starting point was 9, which is the bottom of the bracket.  In fact, the offer to supply 10,000 tablets of MDMA was category 1 with a starting point of 14 years and a range of 12 to 16.  Significant discount for totality must therefore have been applied by the judge having regard not only to the general mitigation but also to totality.

The Serious Crime Act offences envisaging the commission of firearms and robbery offences  
46.	There is no indication in the sentencing remarks as to how far, if at all, the judge considered the robbery guidelines as some sort of yardstick when considering the level of sentence for this offending against the Serious Crime Act.  Strictly they do not apply but they do give some assistance in considering culpability and potential harm and what sort of sentence may be appropriate for effectively conspiring to commit an armed robbery.  
47.	Considering them in that way today, in our judgment the offences were certainly offences with high culpability.  If the robbery had been completed, it would have been a category 1 offence with a 13‑year starting point.  Of course, as with attempts, there must be a discount from that for this inchoate robbery offence.  But that gives some idea of the sort of sentences the courts pass in relation to those who involve themselves in both the planning of and the carrying out of armed robberies.  In fact, the way the judge dealt with this was to take the firearms offence as the lead offence and to impose a lesser concurrent sentence for the robbery offence, namely a sentence of 4 years' imprisonment.  
48.	The Serious Crime Act firearms offence concerned a prohibited weapon and so carried a minimum sentence of 5 years' imprisonment.  Given the surrounding circumstances in which there were various different efforts to provide the undercover officers with a firearm and taking into account the purpose for which it was to be used, a substantial sentence well above 5 years would normally be anticipated.  Quite clearly the judge has allowed a large discount for totality and other matters of general and personal mitigation.  
49.	So far as comparison and contrast with the sentences imposed upon the other defendants is concerned, in our judgment the extent and scale of the offending by the appellant far outweighed that of any of the other defendants.
50.	Quite clearly, we have ultimately to stand back and look at the overall sentence for this wholesale involvement in so many areas of criminality and we have to consider whether the overall sentence is either wrong in principle in any way or whether it is manifestly excessive.  The short answer is that it is neither.  
51.	This appeal against sentence is dismissed.