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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Doforo, R. v [2018] EWCA Crim 1506 (11 May 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1506.html Cite as: [2018] EWCA Crim 1506

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		11th May 2018

LADY JUSTICE SHARP: I shall ask Mr Justice Edis to give the judgment of the court.

MR JUSTICE EDIS:

1. The appellant, Ryan Doforo, is now 33 years old. On 17^th July 2017 in the Crown Court at Carlisle he was sentenced to concurrent terms of fourteen years and six months' imprisonment on each of two counts of conspiracy to supply a controlled drug of Class A. Each count related to a different drug and the two counts taken together related to a drug supply operation which we shall further describe shortly. The sentence was based on a sentence, before plea discount, of sixteen years, with a discount for a guilty plea at trial of ten per cent. The judge dealt with six other conspirators whose roles were less culpable than that of the appellant. It is not necessary to set out what happened to them.
2. The appellant now appeals against sentence by limited leave of the single judge. The leave permits argument that the starting point, before plea discount, of sixteen years was manifestly excessive. The ground for which leave was refused, namely, that the plea discount was wrongly calculated, is not renewed.
3. The case concerns the supply of cocaine and heroin into Cumbria by a criminal group based in Liverpool and headed by the appellant. The group used locally based drug users to facilitate the offences. It was a well-organised and profitable enterprise. The value of drugs supplied was estimated to have been between £250,000 and £380,000. The distribution involved a technique now called "cuckooing" and the use of a pay-as-you-go mobile phone ending in 128. The mobile phone contained the contact details of a very large number of drug users who could be contacted in order to sell them the drugs.
4. The appellant has three convictions, only one of which it is necessary to say anything very much about. In April 2008, in the Crown Court at Liverpool, he was convicted of possessing cocaine with intent to supply it. He was sentenced to six years' imprisonment. The appellant subsequently pleaded guilty to one further relevant offence in January 2012, namely, possessing heroin.
5. The judge made some findings of fact in order to enable him to classify the case in accordance with the relevant guideline which he had very much in mind. He said that the conspiracy period had lasted between May 2015 and January 2017. He said that significant profits were made by selling drugs to drug users who were themselves only able to fund their addiction through the commission of crime. The drugs were sourced in Liverpool and adulterated there. On his arrest, the appellant was found to have a substantial quantity of the adulterant which was used for that purpose and so was found to have been close to that aspect of the operation. He controlled the other conspirators by the use of mobile phones. The principal mobile phone which was used as the marketing device was mostly used by other people under the appellant's direction in order to reduce the risk to him. That placed him at the top of the relevant operation.
6. So far as quantity is concerned, the judge observed that it was not possible to quantify how much had been sold because there had been only limited seizures during the course of the conspiracy. He did, however, attempt a calculation. He said that, based on the quantities with which other conspirators had been found, on the purity of the drugs and on the number of messages sent to drug users, he conservatively estimated that somewhere in the region of 3 kilograms of heroin and cocaine had been sold over the duration of the conspiracies. As a result of that calculation, it was agreed by all parties that the conspiracy in quantity terms fell into category 2 of the guidelines. The judge observed that the starting point for category 2 was based on 1 kilogram of drugs, rather than 3, and found that for the purposes of the guideline the appellant had a leading role in a commercial enterprise which made substantial profits. On that basis, he moved up from the category 2 range into and to the top of the category 1 range. He observed that the appellant had been in a position to limit the risk to himself while prevailing upon others to do the more risky work necessary to perpetrate this offence. Finally, the judge observed that the previous conviction from 2008 was an aggravating feature.
7. Mr O'Donohoe, who appears before us in order to argue this appeal, makes the only point which can be taken on behalf of the appellant clearly, succinctly and forcefully. He says that the starting point of sixteen years was simply too long for a category 2 case. It is not only outside the range for category 2, but actually at the very top end of the range for the higher category, category 1.

Discussion and Decision

8. The guideline provides two relevant ranges for the assistance of the court in dealing with cases of this kind. Category 1, based upon an indicative quantity of drugs of 5 kilograms, provides for a leading role a starting point of fourteen years' custody, with a range of twelve to sixteen years. The lower category (category 2), based on an indicative quantity of 1 kilogram of drugs, provides for a starting point of eleven years' custody with a range of nine to thirteen years. Those ranges, it will immediately be appreciated, overlap.
9. The judge's finding was that a quantity of at least 3 kilograms of drugs was involved in the course of this conspiracy. It has to be appreciated that that finding was an approximation and also that this was an ongoing operation. It actually lasted for just under two years and was intended to last, no doubt, as long as it could. Therefore, the quantity of drugs which had actually been supplied is only part of the assessment of the seriousness of the offending.
10. This requires the flexible approach by a sentencing judge, as explained by this court in R v Healey [2012] EWCA Crim 1005 in order to select a sentence within the relevant ranges which proportionately reflects the offending. The quantity in this case falls well above the category 2 quantity and somewhat below the category 1 quantity. A sentence in the range, therefore, between the starting points for those categories may in many cases be appropriate for a case of this kind.
11. In this case the serious aggravating feature of cuckooing was reflected in the judge's assessment of the role of the appellant for guideline purposes in accordance with the decision of this court in R v Ajayi [2017] EWCA Crim 1011, of which he was plainly aware.
12. The long duration of the offending also requires some increase in the sentence. In most such cases a sentence before plea discount somewhat shorter than that imposed by the judge in this case would suffice. However, the previous conviction for Class A drug dealing is, in our judgment, a very serious aggravating feature. This is the result of the application of section 143(2) of the Criminal Justice Act 2003, which the court is bound to apply. Professional criminals who persist in dealing with Class A drugs, after having been previously convicted and punished by a substantial term of imprisonment, require appreciably longer terms of imprisonment than others when they are subsequently convicted again. This is to deter them and also others like them who set about making the risk benefit calculation before engaging in this very deliberate and financially driven kind of offending. The rewards are very high – and so also must be the risks.
13. For these reasons we consider that the judge was entitled to move into the category 1 range and indeed to move to the top of that range, which is what he did.
14. Accordingly, this appeal against sentence is dismissed.