Following a good run of sentencing in EncroChat related cases, I have been reviewing the recent authorities which can assist in advising clients.....

Following a good run of sentencing in EncroChat related cases, I have been reviewing the recent authorities which can assist in advising clients taking peripheral or ‘less than leading’ roles in large drug conspiracies.

I have often found that clients become focussed on being sentenced on the basis of 'significant role' as opposed to a 'leading role'. It can be tempting for clients to see a 'significant role' as a target in a sentencing exercise.

I have found it helpful to focus the client's mind on the fact specific nature of the sentencing exercise. Cases often have a combination of factors indicative of leading and significant roles. This is particularly true in the context of EncroChat related cases, where 'roles' within drug operations were often changeable.

Moving clients away from a fixation on which specific role they fall into will prepare them for the more considered analysis which the Judge is obliged to undertake.

It is clear that:

1)????? Each case will be highly fact specific;

2)????? With leading roles in conspiracies in excess of the guidelines, starting points in excess of 20 years will be appropriate; for most sentences short of 1000s of kilos, there will be ‘bunching’ of sentences between 20 and 30 years;

3)????? For significant and lesser role cases, the guidelines can be used a starting point with an uplift to reflect the quantity of drugs involved.

The following are what I take to be the key points from each judgment.

Cuni, 2018 EWCA Crim 600

This case involved a conspiracy to supply class A drugs lasting 14 months (2).

It was a long running highly sophisticated commercial operation to distribute large quantities of cocaine ranging from 88 – 93 percent purity (22).?

The Court found that where the known amount of drugs is well in excess of the indicative amounts in the guidelines, the guidelines should be borne in mind as a ‘valuable touchstone’, as per R v Copeland (40).

Sentences of more than 30 years would have been an appropriate starting point for a prime mover in an importation involving 2000 – 3000 kilos. Aside from these truly extraordinary cases there is a ‘ceiling’ of 30 years (42).?

As per Sanghera, there is likely to be ‘bunching’ in a range of sentences between 20 – 30 years as the scope to differentiate for amounts and roles is very compressed. It is ‘an exercise of judgment to scale up the corresponding sentence for those at the bottom rung of leading role along with significant and lesser roles in such a way that fairly reflects … his comparative significance to the offending as a whole’ (43).?

These cases are likely to be highly fact specific (44).

Wraight – 2021 EWCA 1968

This was an Attorney General’s reference case involving ?a conspiracy to supply of 120 kilos of cocaine.

Wraight playing a leading role, albeit not ‘the leading’ role. Bannister was at the ‘upper end of significant role’. He took over the operation when Wraight was unavailable or incapacitated (4).

Wraight had previous convictions for 20 offences including a conviction for conspiracy to supply cocaine resulting in an 8-year sentence. ?

The Court of Appeal adjusted the sentence for Wraight upwards from 12 to 16 years taking a starting point ‘some way in excess of 20 years’ which would have followed a trial (35).

Salarsli and Selfo – 2022 EWCA Crim 693

This case involved the Supply of 78 kilos by Salarsli, supply of 156 kilos by Selfo.

The Recorder in the Crown Court had found that Salarsli played a ‘significant role’ on the basis that he became involved in the conspiracy for ‘financial gain’ (19) and undertook ‘operational functions’ (20). He was more than a courier.

Not everybody involved in a very large drug conspiracy must end up with sentences of 20 years or more. It will always depend on role. Courts should take a starting point by reference to the guidelines, then uplift for the quantity of drugs involved (23).

An uplift from 10 year starting point to 16 years was justified to reflect the amount of drugs supplied (24).