BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dang & Ors v R [2014] EWCA Crim 348 (07 March 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/348.html Cite as: [2014] 2 Cr App R 3, [2014] 1 WLR 3797, [2014] WLR 3797, [2014] Crim LR 675, [2014] EWCA Crim 348, [2014] 2 Cr App R (S) 49, [2014] WLR(D) 118 |
[New search] [Printable RTF version] [View ICLR summary: [2014] WLR(D) 118] [Buy ICLR report: [2014] 1 WLR 3797] [Help]
201202962 B5, 201203141 B5, 201203143 B5, 201203368 B5, 201300438 B5, 201301695 B5 |
ON APPEAL FROM
THE CENTRAL CRIMINAL COURT (His Honour Judge Hone QC)
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE BURTON
and
MRS JUSTICE PATTERSON DBE
____________________
(1) Manh Toan Dang (2) Hung Tuan Dang (3) Nhien Van Dang (4) Ngoe Tien Ly (5) Hai Ban Tran (6) Van Quan Dang (7) Tuan Van Le (8) Freddie Ross Johnson and (9) Thuong Tu |
Appellants |
|
- and - |
||
Regina |
Respondent |
____________________
S Kivdeh (instructed by Eshaghian & Co Solicitors) for the 2nd Appellant
A Orchard QC (instructed by Abbey Solicitors) for the 3rd Appellant
I McLoughlin (instructed by SBG Solicitors) for the 4th Appellant
J Sidhu QC (instructed by Lloyds PR Solicitors) for the 5th Appellant
K Brimelow QC (instructed by EBR Attridge Solicitors) for the 6th Appellant
H Brown (instructed by EBR Attridge Solicitors) for the 7th Appellant
C Conway (instructed by ZMS Solicitors) for the 8th Appellant
J Doyle (instructed by Creed Lane Law Group Solicitors) for the 9th Appellant
H Davies QC and B Jung (instructed by CPS) for the Respondent
Hearing date: 13 February 2014
____________________
Crown Copyright ©
Lord Justice Pitchford :
Introduction
The indictment
The convictions
The prosecution case
Appeal against conviction
Count 1
Statutory provisions
"Restriction of production and supply of controlled drugs
(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person -
(a) to produce a controlled drug; or
(b) to supply or offer to supply a controlled drug to another.
(2) Subject to section 28 of this Act, it is an offence for a person -
(a) to produce a controlled drug in contravention of subsection (1) above; or
(b) to be concerned in the production of such a drug in contravention of that subsection by another."
"The offence of conspiracy
(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."
"(1) Was there a conspiracy to be concerned in the production of cannabis by another? This requires the prosecution to prove that two or more persons agreed to a course of conduct such that if it were carried out as intended, one or more parties to the agreement would necessarily commit the offence of being concerned in the production of cannabis by another. On the facts of this case the prosecution must prove that the defendant whose case you are considering supplied or intended to supply equipment to another person or persons, but not a party to the conspiracy, knowing or intending that it would be used by that other person to produce cannabis and the particular defendant agreed to this. If the answer to this question is no, then the defendant whose case you are considering must be found not guilty. If you are satisfied so that you are sure that the answer to the question is yes, then go on to consider the next question.
(2) Was the defendant whose case you are considering party to the conspiracy? A person is a party to the conspiracy if he (i) agrees with one or more of the parties to the conspiracy to a course of conduct that necessarily involves the commission by one or more of such parties of the offences of being concerned in the production of cannabis by another and (ii) intended to play and did play some part in the agreed course of conduct in furtherance of the criminal purpose of the production of cannabis by another person other than the conspirators which the agreed course of conduct was intended to achieve. If you are not sure on this point, the defendant whose case you are considering must be found not guilty. If you are sure, you must go on to consider the third question.
(3) Did the defendant whose case you are considering have the necessary intention to commit the offence? You could not convict any of the defendants on count 1 unless you are sure that the defendant whose case you are considering became a party to the conspiracy and, at the time of joining the conspiracy, he had the intention that all or some of the products and equipment sold should and would be used for the production of cannabis by another. It is important to emphasise this specific intent: if products and equipment were imported and sold but only with the general knowledge that they could be used for cannabis production, as admitted for example by Manh Toan Dang and Freddie Ross Johnson, that would not be sufficient. There has in each defendant's case to be a specific intention that the production of cannabis by another should and would take place...If you are not sure that the defendant whose case you are considering had that specific intention, then that defendant must be found not guilty of conspiracy to be concerned in the production of cannabis by another." [Emphasis added]
"18. The course of conduct to which the would-be aiders and abettors agree will, ex hypothesi, involve their performing acts that are no more than necessary to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of an offence. This result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt to do so."
At paragraph 21 the court endorsed the conclusion of the court in Hollinshead (below) that an agreement to aid and abet, counsel or procure an offence is not in law capable of constituting a criminal conspiracy under section 1(1) of the 1977 Act.
"Count Two: Concerned in the production of cannabis
This count also concerns only Mr Nguyen. It is quite different from count one. The evidence is different. The law is different. You must consider them separately.
The prosecution say that Mr Nguyen was concerned in the production of cannabis. They say that until the 26 September 2006 he ran his shop, Forever Green, knowing that he was supplying equipment for the production of cannabis. Mr Nguyen denies that this was the case.
The questions you must answer are:
1. Was cannabis produced by the customers of Forever Green using equipment bought from the shop? You must be sure that it was. If you are not sure then that is the end of the matter and Mr Nguyen is not guilty of count two. If you are sure, go on to consider:
2. Was there an identifiable participation in the production of cannabis by Mr Nguyen and did he intend to participate.
If you are sure that Mr Nguyen sold items in the shop knowing that they were to be used in the production of cannabis AND intending that they should be then there may be a deliberate identifiable participation by him in the production of cannabis. That is a matter for you to decide.
But nothing less than that will do. It is not a question of whether the items could be used to grow cannabis, or whether Mr Nguyen suspected that they were being used for the production of cannabis. It is not a matter of whether Mr Nguyen gave the matter any thought or should have given the matter any thought.
If you are sure that the answer to both questions is yes then he is guilty. If you are not sure then he is not guilty."
This court (Hooper LJ, Butterfield and Parker JJ) held that the judge's direction to the jury was accurate in law. The act of being concerned could take place before or after the production. Section 4(2)(b) of the 1971 Act did not require proof of involvement in any particular process of production.
Conclusion
Application of Freddie Ross Johnson
Counts 3 and 4
Abuse of process
Severance
Identification evidence
False imprisonment
Conclusion
Appeals against sentence
Starting point
Sentencing Council Guideline
"Where the drug involved is cannabis, the quantity has been described in terms of the scale of the operation rather than in weight or in number of plants. However, the number of plants has been given to aid the distinction at the lower end, as the only real means of differentiation between different levels of domestic operation would be the number of plants involved. These are intended as a guide and convey only approximate amounts.
There are five levels of quantity to be considered for production/cultivation offences – very large, large, medium, small and very small. As with importation, specific quantities have been identified within each of these levels for some of the most commonly sentenced drugs of each class in order to aid the court when determining the most appropriate category. The exception to this is cannabis, as outlined above. Where the specific drug involved in the offence is not mentioned, equivalent quantities should be used."
Sentencing remarks
"From the general remarks I have made about the scale of this operation, there can be no question about any of the defendants being in any offence category other than category 1, having regard to culpability and harm caused. As the guideline states, where the operation is on the most serious and commercial scale involving industrial quantities for commercial use, sentences of 20 years and above may be appropriate, depending on the role of the offender."
We note that the guideline's reference to sentences of 20 years or more must apply specifically to class A offences since the maximum sentence for a class B offence is 14 years custody and, in the case of cannabis, the quantity in category 1 is already described as "industrial". It is plain to us that the judge must have had this in mind since he made specific reference in his sentencing remarks to the maximum sentence of 14 years. The judge was pointing out, we think, that the guideline recognised that there would be some cases of exceptional seriousness requiring a sentence in excess of the upper range. The appellants do not dispute that, whether the offender fell to be sentenced as a count 1 or a count 2 conspirator, he fell within the category 1 guideline. The guideline states that the starting point for a category 1 offender who played a leading role in a cannabis offence (page 20) is 8 years custody and the category range is 7 – 10 years custody. The judge concluded that there was little or nothing to choose between the seriousness of the count 1 and count 2 conspiracies. Although count 2 involved the production of cannabis for the benefit of the conspirators, the result in the case of both counts was the same – the production of industrial quantities of cannabis. We would observe only that, other things being equal, personal production for commercial gain (count 2) might be regarded as the more serious offence because the conspirators were personally embracing the risk of making substantially more profits from drug dealing, the need to involve others in the factory cultivation and the employment of other offences, such as the extraction of electricity, to achieve their purpose. The counterbalance in the present case is that the market for cannabis-growing products was much larger than the conspirators' capacity to expand their own cannabis factories.
"In my judgment, the distinction to be drawn between cultivated skunk and class A drugs is not a large one"
It has been urged upon us forcefully by Ms Brimelow QC and Mr Griffiths QC that the judge was signalling an intention to adopt a starting point which reflected his opinion that there was little to choose between the harm done by skunk and the harm done by a class A drug. If the judge took account of that opinion in assessing the appropriate starting point, he departed from the guideline without justifying that course as being in the interests of justice. We accept the submission that the judge was not permitted to sentence according to a personal opinion that the starting points and ranges for category 1 cannabis offences were in general too low for "skunk" cannabis offences. The guideline embraces all forms of cannabis. However, it is conceded on behalf of the appellants that the judge was entitled, at step 2 of his assessment, to take account of the somewhat increased potency of the cannabis in whose production the appellants were concerned when selecting his starting point within the advised range (guideline pages 25 and 26).
"You will know that the Sentencing Council has recently issued a guideline effective from 27 February 2012. In this case there were two conspiracies charged, count charging being concerned in the production of cannabis, which related to the accumulation of equipment, premises and the like and count 2 charging the actual production of cannabis. The conspiracies are factually distinct although the conduct was concurrent in time, but each involves the end result of the cultivation of cannabis on an industrial scale. The maximum penalty for each different conspiracy is 14 years imprisonment and, in theory, the sentences could run consecutively. There should in my view be some distinction between defendants who are party to both conspiracies and those who are convicted or plead guilty to only one. In the course of the first trial, it was suggested that count 2, the production of cannabis, was more serious that count 1 of being concerned in the sense of importing and selling equipment. I do not think that there is a material distinction in terms of culpability because the end result is the same. It just means that the individual defendant who is convicted of both is more culpable."
After making reference to the scale of the operation (paragraph 33 above) the judge continued:
"As I have also said, skunk cannabis, with its high THC content, can, and in my view should be, be treated as deserving a higher starting point than 8 years custody for a single charge for an offence in category 1, class B. In this case there are two conspiracies and although in theory there could be a maximum sentence of 28 years, that would, in my judgment, be excessive and disproportionate, even though this is said to be the largest case in Europe and the guideline does refer to sentences of 20 years and above.
After careful consideration, I have decided that the starting point for leading participants should be 14 years imprisonment for those convicted of both conspiracies in counts 1 and 2. I appreciate that this is higher than the 5 ½ to 8 years range for class B drugs but, as I have explained, there are two conspiracies and skunk is more dangerous than resin or herbal cannabis."
Conclusion
"The principle of totality comprises two elements:
1. All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence.
2. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole."
Manh Toan Dang
Hung Tuan Dang
Nhien Van Dang
Ngoe Tien Ly
Hai Ban Tran
Van Quan Dang
Tuan Van Le
Freddie Ross Johnson
Thuong Tu
Conclusion
Name | Offence | Date of Plea or Conviction | Sentence | Application/Appeal |
(1) Manh Toan Dang |
Counts 1 - 4 |
Conviction after trial 14 February 2012 |
30 March 2012: Ct 1 14 years imp Ct 2 14 years imp conc Ct 3 12 imp consec Ct 4 3 months imp conc Total 14 years imp Days to count: 526 |
Renewed application for leave to appeal against conviction following refusal by the single judge Appeal against sentence with leave of the single judge |
(2) Hung Tuan Dang |
Counts 1 - 4 |
Conviction after trial 14 February 2012 |
25 May 2012: Ct 1 7 years imp Ct 2 7 years imp conc Ct 3 12 imp consec Ct 4 3 months imp conc Total 7 years imp Days to count: 584 |
Renewed application for leave to appeal against conviction following refusal by the single judge Appeal against sentence with leave of the single judge |
(3) Nhien Van Dang |
Counts 1 and 2 (Count 5 to lie on the file) |
Pleaded guilty re-arraignment 4 November 2011 |
30 March 2012: Ct 1 10 years imp Ct 2 10 years imp conc Total 10 years imp Days to count: 526 |
Appeal against sentence with leave of the single judge |
(4) Ngoe Tien Ly |
Counts 1 and 2 |
Pleaded guilty re-arraignment 22 March 2012 |
25 April 2012: Ct 1 6 years imp Ct 2 6 years imp conc Total 6 years imp Days to count: 552 |
Appeal against sentence with leave of the single judge |
(5) Hai Ban Tran |
Counts 1 and 2 |
Pleaded guilty re-arraignment 8 November 2011 |
25 April 2012: Ct 1 4 years imp Ct 2 4 years imp conc Total 4 years imp Days to count 552 |
Appeal against sentence with leave of single judge |
(6) Van Quan Dang |
Counts 1, 3 and 4 (Count 2 to lie on the file) |
Jury failed to agree 14 February 2012 Pleaded guilty re-arraignment 25 April 2012 |
6 July 2012: Ct 1 9 years imp Ct 3 323 days imp consec Ct 4 3 months imp conc Total 9 years 323 days imp Days to count: 596 |
Renewed application for leave to appeal against conviction following refusal by the single judge Application for leave to appeal against sentence referred by the Registrar |
(7) Tuan Van Le |
Count 1 (Count 2 to lie on the file) |
Pleaded guilty re-arraignment 1 May 2012 |
4 May 2012: Ct 1 6 years imp Total 6 years imp Days to count: 234 |
Appeal against sentence with leave of the single judge |
Nhat Anh Ngyuen |
Count 1 (Count 2 to lie on the file) |
Pleaded guilty re-arraignment 23 March 2012 |
30 March 2012: Ct 1 30 months imp Total 30 months imp Days to count: 526 |
Trong Van Le |
Count 1 (Count 2 to lie on the file) |
Pleaded guilty re-arraignment 23 March 2012 |
2 April 2012: Ct 1 30 months imp Total 30 months imp Days to count: 529 |
|
Andre Davies |
Count 2 (Count 1 to lie on the file) |
Pleaded guilty 6 October 2011 |
30 March 2012: Ct 2 4 years imp Total 4 years imp Days to count: 407 |
|
Shaun Byrne |
Count 1 (Count 2 to lie on the file) |
Conviction 20 December 2012 |
18 January 2013: Ct 1 30 months imp Total 30 months imp |
Renewed application for leave to appeal against conviction following refusal by the single judge Appeal against sentence with leave of the single judge |
(8) Freddie Ross Johnson |
Count 1 |
Conviction after re-trial 20 December 2012 |
18 January 2013: Ct 1 9 years imp Total 9 years imp |
Renewed application for leave to appeal against conviction following refusal by the single judge Appeal against sentence with leave of the single judge |
(9) Thuong Tu |
Count 1 (Count 2 to lie on the file) |
Conviction 20 December 2012 |
18 January 2013: Ct 1 4 years imp Total 4 years imp |
Appeal against sentence with leave of the single judge |
Ngat Le |
Count 1 |
Conviction 20 December 2012 |
8 February 2013: Ct 1 42 months imp Total 42 months imp Days to count: 371 |
|
Hung Van Le |
Count 1 |
Conviction 20 December 2012 |
8 February 2013: Ct 1 5 years imp Total 5 years imp Days to count: 371 |
|
Gary Hadley |
Count 1 |
Conviction 20 December 2012 |
8 February 2013: Ct 1 24 months imp suspended 24 months and 300 hours work |