R v Paul Denys Walker

MR JUSTICE HILLIARD:

1. On 1 August 2024, in the Crown Court at Leeds, the applicant (then aged 46) was convicted of conspiracy to supply Class A drugs. On 18 November 2024, he was sentenced to 9 years' imprisonment. He now renews his application for leave to appeal against sentence after refusal by the single judge.

2. The facts were as follows. On 11 May 2018, the applicant was involved in the supply of half-a-kilogram of importation-quality cocaine. He had made arrangements to meet Sanchez Heffernan at a public house in Farnley. There the applicant supplied Heffernan with drugs in exchange for payment. Heffernan and a man called Issa Muvunyi drove away. The applicant saw that they were being followed and telephoned Heffernan to warn him. Heffernan and Muvunyi were arrested. In their vehicle was a bag containing half-a-kilogram of cocaine at 91 per cent purity. It had a wholesale value of between £20,000 and £30,000 and a retail value of up to £50,000.

3. The applicant was arrested on 14 December 2018. He was found with an encrypted EncroChat device which had been damaged beyond use and a number of "burner" mobile telephones. He declined to answer questions when interviewed.

4. The applicant had a number of previous convictions between 1992 and 2003, for offences including theft, burglary and robbery. In 2003, he was given a community order for possessing cocaine and MDMA.

5. The judge did not have a pre-sentence report. None was necessary, then or now. When he passed sentence the judge said that the applicant's possession of an EncroChat phone was a hallmark of professional criminality. He said that it was importation-pure cocaine which indicated a proximity to the original source of the drugs. The judge said that he had organised the sale to Heffernan who would have distributed the drugs further down the ladder to others. The judge said he must have had an expectation of substantial financial gain. The judge was satisfied that he had had a leading role. The judge said that he took account of favourable references which had been submitted on the applicant's behalf and of the passage of time since the offence.

6. The judge said that harm was in category 2 for the purpose of the applicable Sentencing Guidelines, although there would have to be an adjustment because the indicative amount for category 2 was 1 kilogram. A category 2 leading role offence has a starting point of 11 years' imprisonment and a range of 9 to 13 years' imprisonment. The judge said that but for delay the sentence would have been 10 years' imprisonment and an allowance for delay resulted in a sentence of 9 years' imprisonment.

7. In the Crown Court, the defence took issue with the prosecution suggestion that the applicant had a leading role. In the Sentencing Note prepared at the time Mr Qazi KC, who appeared for the applicant then as he does now, said this: “It is accepted that any final assessment on classification will rest with the judge who, having presided over the trial, will be familiar with the factual matters and indicators of increased or lesser culpability.”

8. Mr Qazi argues that the applicant performed a function within a chain, with an expectation of financial or other advantage and with some awareness and understanding of the scale of the operation. Those are of course characteristics of a significant role rather than a leading role in the sentencing guidelines.

9. The guideline provides that in assessing culpability the sentencer should weigh up all the factors of the case to determine the role. It says that where there are characteristics present which fall under different role categories, the court should balance those characteristics to reach a fair assessment of the offender’s culpability. The judge took the view that the applicant was organising the sale on a commercial scale and that he must have had close links to the original source because of the purity of the cocaine. He was also satisfied that he must have expected a substantial financial advantage. Those are characteristics of a leading role and we are satisfied that those were all findings of fact which it was open to the judge to make. The guideline provides in addition that the list of characteristics are not exhaustive. The judge was plainly influenced by the applicant's possession of an EncroChat phone. That was also a factor he was entitled to take into account.

10. Having considered the matter carefully, we are satisfied that this was indeed a matter, as counsel had said, for the assessment of the judge, who had the advantage of presiding over the trial and the conclusion he came to was one which was reasonably open to him. Mr Qazi drew attention to a telephone call received by the applicant at the time of transaction which he submits means that the applicant must have been under instruction. We think that is to read too much into one telephone call which is equally consistent with information rather than instruction being provided. In any event, the judge was well aware of the arguments about the call, having heard the evidence in the trial.

11. Mr Qazi also argues that even if the applicant was properly to be given a leading role, the judge should have taken a lower starting point within the range because of the quantity of drugs involved, with further downward adjustment for delay and for personal mitigation. The difficulty in the way of this submission is that the judge reduced the sentence because of the amount of drugs involved and because of delay and made reference to the testimonials put in on the applicant's behalf. We acknowledge that the testimonials speak to a better side of the applicant which is to his credit. However, there is no set amount for any reduction, and these again were very much matters for the judge's assessment. Personal mitigation is of limited weight where serious offences are concerned and, of course, on the judge's findings, there were three leading role factors which would justify an increase from the starting point.

12. Accordingly, and notwithstanding the helpful submissions of Mr Qazi who has covered every point to best effect, this renewed application for permission to appeal must be refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]