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England and Wales Court of Appeal (Criminal Division) Decisions


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URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/275.html
Cite as: [2025] EWCA Crim 275

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Neutral Citation Number: [2025] EWCA Crim 275
CASE NO: 202401557 A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HIS HONOUR JUDGE JAMES PATRICK T20237028

Royal Courts of Justice
Strand
London
WC2A 2LL
27 February 2025

B e f o r e :

LORD JUSTICE FRASER
MR JUSTICE MARTIN SPENCER
RECORDER OF COVENTY
(His Honour Judge Lockhart KC)

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REX
- v -
QUYEN TO

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

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MR TOM WAINWRIGHT appeared on behalf of the Appellant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MR JUSTICE MARTIN SPENCER:

  1. By leave of the single judge, the Appellant, Quyen To, who was born on 31 May 1981 and is now aged 43, appeals against his total sentence of 16 years' imprisonment imposed by HHJ Patrick sitting in the Crown Court at Bristol on 5 April 2024.
  2. The Appellant had pleaded guilty on 21 July 2023 to the following counts on the indictment:
  3. A further count to which he had pleaded not guilty, namely possessing a controlled drug of Class A (MDMA) with intent to supply, was ordered to lie on the file. In respect of the counts to which he pleaded guilty, the Appellant was sentenced as follows:

    giving a total of 16 years' imprisonment.

  4. The basis of this appeal is that, in making the sentences for counts 2 and 5 consecutive, the learned judge had insufficient regard to the principle of totality resulting in a sentence which, it is suggested, was manifestly excessive. It is submitted that, on the basis that the Appellant was entitled to a 25 per cent discount for his plea of guilty, the sentence of 16 years' imprisonment is equivalent to a sentence in the region of 22 years after trial, and such a sentence is - to quote from the Advice on appeal - "far in excess of anything which could be considered just and proportionate for a Class B drug".
  5. The Appellant's offending arose out of the importation, exportation and supply of a drug known as "Spice" over a four-year period with the Appellant at the head of the operation which involved a number of people he trusted, including members of his family. The offending came to light as a result of the interception of four kilograms of Spice. From those interceptions, arrests and searches followed, which in turn led to the seizure of electronic equipment and records which demonstrated the extent of the criminality. The operation was sophisticated and effective. Packages, usually of a kilo or two of the base product, were sent from China and delivered to the Appellant and others involved in the conspiracy. Once here, it was mixed to be diluted or cut by a factor of about 20 before being distributed in this country and abroad, generating large amounts of cash. The Appellant was in close contact with suppliers of drugs in China, demanding the best prices and the best products. He enlisted others to receive drugs for him including his sister. Cash payments were made, some by family members, in a manner to disguise where the money was coming from and how it was going out. Shipments were tracked. He ordered large amounts of marshmallow leaf which was the material which allowed the product to be smoked. He prepared the product himself and recruited others. He set up a website portal. He created a substantial supply chain for the product to be traded, both here and to a large number of countries abroad, in amounts ranging from low numbers of grams to kilos.
  6. As the learned judge observed, Spice is a potentially lethal product. The Appellant was aware of the dangers of it but carried on regardless. He was undeterred by the risk of arrest. Together with his nephew, he actively sought the assistance of a pharmacist, with a view to being able to produce the product here to avoid having to import it.
  7. It is clear that, over the years, the Appellant received and kept large quantities of cash as a result of this criminal activity. Whilst the total quantity is impossible to assess, an indication is given by the fact that a schedule prepared by the officer in the case suggests importation of 130 kilograms in the first eight months of 2020 alone. The Appellant was able to buy two houses. He spoke in messages of being owed £100,000. The portal suggests supplies of over £100,000. After his arrest he transferred over $60,000. At the time of his second arrest, as he attempted to leave the jurisdiction, he had a device with him which showed that between September 2021 and March 2023, so in the period after his first arrest and before his second, he had dealt with a further $1,500,000 in Bitcoin.
  8. The Appellant was initially arrested in August 2020 at his home in Swindon, together with his nephew whom he had recruited. The nephew, who was only 17 at the time, was preparing drugs there which could have achieved a street value of £2 million. The Appellant had 100 kilos, in round terms, of product and the bulking material. The Appellant's partner, the mother of his children, was also arrested in relation to money which she had laundered. The Appellant had a number of vehicles and high-value items at both his addresses.
  9. However, that arrest did not bring an end to the Appellant's criminality. Although he took a step back, allowing his sister to step up to run the business, he remained in contact with the suppliers and the operation continued. When warrants were executed at his sister's home some time later, large amounts of cash were recovered with Bitcoin ledgers, and also what were in effect company records. The learned judge sentenced the Appellant on the basis that this was a significantly sophisticated and calculated operation which would have been bigger and more effective but for problems with quality, recruitment and other circumstances beyond the Appellant's control.
  10. In sentencing the Appellant, the learned judge, appropriately in our view, reminded himself of the decision of the Court of Appeal in Wilson [2024] EWCA Crim 124 that, in the case of conspiracies, the sentencing guidelines should not be slavishly applied. The court in that case said:
  11. "A defendant who takes part in a conspiracy supports the overall enterprise. The amount with which the defendant is personally and directly involved is of lesser relevance.
    The assessment of harm must also take account not only of the quantities with which the conspirator actually dealt, but also of what the conspirators intended or foresaw. That is particularly significant when a conspiracy is brought to an end by police action. Such a conspiracy is usually intended to continue into the future."

    The learned judge rightly considered that this encapsulated the Appellant's criminality, saying: "But for the very effective police action, this conspiracy would have continued into the future."

  12. Giving due consideration to the Sentencing Guidelines for the substantive offence (but we observe that the guidelines are applicable to a single offence), the learned judge considered that in relation to counts 1 and 2, the Appellant was performing a leading role, with four of the six leading role factors applying, and that the harm was category 1 by reference to the "very large quantity of drug, indicative of an industrial scale operation" giving a starting point of 8 years and a sentencing range of 7 to 10 years. In relation to count 3, it was conceded that the Appellant played a leading role with the same factors already identified, and with the quantity being indicative of a commercial operation, the starting point was 6 years with a range of 4½ to 8 years. Finally, in relation to count 5, the Appellant was seeking to retain and avoid confiscation of over £1,000,000, giving a starting point of 7 years with a range of 5 to 8 years' imprisonment.
  13. In sentencing the Appellant, the learned judge, whilst acknowledging that illegal importation of drugs may well lead to their illegal supply, took into account that importation and supply are separate offences and that there were three distinct parts to the Appellant's involvement, namely the importation, the supply and then the possession of cash whilst on bail. This was the basis for considering that the imposition of consecutive sentences was appropriate. Nevertheless, he stated that he had regard to the maximum sentence of each offence and to the principle of totality.
  14. The learned judge had regard to the mitigation urged on the Appellant's behalf, such as his charity work, the effect on his children, the references he had provided and, in particular, his pleas of guilty. Whilst passing consecutive sentences for counts 1, 2 and 5, but not for count 3, and applying the 25 per cent discount for the pleas of guilty, he stated that he had in mind the principle of totality and an overall sentence which, in his judgment, was just and proportionate. Thus it was that he reached the total sentence of 16 years' imprisonment.
  15. We are grateful for the submissions of Mr Wainwright and Mr Watson in writing for the Appellant, and today of Mr Wainwright orally. In their written submissions they calculated that the overall reduction for totality could be considered to have been 30 months if the starting point indicated by the judge for each offence is taken into account. As stated, they submitted in writing, and Mr Wainwright submits today, that the total sentence was far in excess of anything that could be considered just and proportionate for offences involving Class B drugs. It is submitted that a very substantial reduction should have been made on account of totality, far greater than that in fact made, to reflect the fact that this was a single operation in which drugs were imported, mixed and supplied either domestically or internationally. It is pointed out that any importation on an industrial scale, which therefore falls within category 1 of the sentencing guidelines, will intrinsically be for onward supply on a similarly industrial scale and such volumes would almost certainly not be confined to the domestic market alone. The fact that the Spice imported will be supplied onward must, it is submitted, therefore have been taken into account when setting the appropriate starting point in the guidelines. The level of harm caused in terms of the likely number of individual end users is the same whether those users are in the United Kingdom or abroad. Whilst conceding it was open to the learned judge to impose consecutive sentences on counts 1 and 2, it is submitted that the appropriate course, in order to make the overall sentence justifiable, would have been to make the sentences on those counts concurrent, whilst increasing the aggregate sentence by a proportionate degree. In relation to count 5, it is submitted that the discount for plea should have been one-third given the late stage at which the count was added to the indictment. Again, it is accepted that a consecutive sentence for count 5 was open to the judge, but it is submitted that a substantial reduction should have been applied to reflect totality given the high degree of overlap between this offending and the offending in counts 1 and 2.
  16. Discussion

  17. In our judgment, the sentence imposed, whilst undoubtedly at the higher end of the range of sentences that could reasonably be imposed by the learned judge, cannot be characterised as manifestly excessive. Whilst we accept the distinction the Appellant seeks to draw between Class A and Class B drugs, the distinguishing feature of the offending here lies in the "industrial scale" of the enterprise, generating millions of pounds of profit for the Appellant and involving the recruitment of many others, including members of the family, in the criminal enterprise. In our judgment, a long sentence was therefore inevitable. We consider that the learned judge was perfectly justified in structuring the sentence as he did: the imposition of consecutive sentences was the only way in which he could properly reflect the overall criminality, and we consider that he was right to distinguish between the various stages, namely first the illegal importation of the drug, then its supply, and finally the possession of cash: whilst all part of a single enterprise, they are individually separate criminal activities, reflected in the separate counts on the indictment. Additionally we consider two further aspects to be significant in justifying the sentence imposed: first, these were conspiracies whereby, as the court observed in Wilson, the assessment of harm must take account not only of the quantities with which the conspirator actually dealt – here themselves enormous - but also of what the conspirators intended or foresaw. The conspiracy was brought to an end by exemplary police action, but for which it was intended to continue, and would have continued, into the future. Secondly, the Appellant was undeterred by his first arrest, and continued his activities whilst on police bail, this alone justifying the imposition of a consecutive sentence at least for count 5. Finally, we observe that the learned judge paid due and proper attention to the principle of totality, demonstrated in two ways: first, by the imposition of a concurrent sentence for count 3; secondly, by the reduction in the sentences for counts 1, 2 and 5 by a total of two-and-a-half years. In our judgment, this was an adequate and appropriate reflection of the totality principle in this particular case.
  18. For those reasons, the appeal against sentence is dismissed.
  19. 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: Rcj@epiqglobal.co.uk


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URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/275.html