Kirkby v R.

Factual and Procedural Background

This appeal concerns the sentence imposed on the Appellant following a Newton Hearing held over several days in December 2022 and March 2023 before HHJ Ashworth at the Crown Court at Portsmouth. The Appellant, aged 34 at the time of sentencing, pleaded guilty to three counts related to conspiracies to supply the class C drug alprazolam and one count of converting criminal property under the Proceeds of Crime Act 2002. He was sentenced to a total of 9 years and 6 months’ imprisonment with consecutive and concurrent terms. Not guilty verdicts were recorded on other indictment counts.

Between 2014 and 2017, an organised crime group (OCG) operated a large-scale production, packaging, distribution, and supply of counterfeit alprazolam (Xanax). The Appellant and two co-defendants, referred to as Co-defendant A and Co-defendant B, held leading roles in the enterprise. The operation produced over 6.8 million pills with an estimated street value of £20 million, aiming to produce 250,000 pills daily.

The conspiracy began in August 2014, with manufacturing starting in May 2015. By January 2016, pills were marketed in packets of 10 up to 500 units. The drugs were sold via both clearnet and darknet platforms globally, with cryptocurrency payments laundered through complex channels. The prosecution charged two conspiracies: the first involving all three leading defendants (2014-2017), and the second continuing after Co-defendant A’s arrest in June 2017 until the Appellant’s arrest in October 2017.

The Appellant used a gym and nutrition business as a cover and collaborated closely with the co-defendants, who handled production, sales, and laundering via fronts including a bitcoin café. The conspiracy was uncovered following investigations by the owner of the legitimate Xanax brand, who conducted undercover purchases and passed evidence to the police. Arrests followed in 2017, culminating in the Appellant’s charge and court appearances in 2021.

Separately, the Appellant had been involved in a steroid conspiracy from 2012 to 2016, resulting in a prior conviction and sentence of 40 months imprisonment in 2018. This prior offending was considered relevant in the sentencing for the alprazolam conspiracies.

The sentencing hearing for the alprazolam offences involved expert evidence on harm caused by the drugs. The judge accepted prosecution expert evidence that alprazolam was highly toxic and harmful, with several aggravating factors including the scale of production and the Appellant’s leading role. The judge imposed consecutive sentences reflecting the severity and persistence of the Appellant’s offending, including attempts to conceal evidence and continued criminality while on bail for the steroid offences.

The appeal challenges the sentence on grounds of disparity with co-defendants and totality, arguing double counting of aggravating factors and disproportionate sentencing. The Crown contended that differences in roles, culpability, and mitigation justified the sentences imposed.

Legal Issues Presented

1. Whether the sentence imposed on the Appellant was manifestly excessive or disproportionate compared to co-defendants given the differences in roles and mitigation.
2. Whether the sentencing judge erred by double counting aggravating factors related to the Appellant’s prior steroid conspiracy convictions and bail status.
3. Whether the principle of totality was appropriately applied in sentencing the Appellant for multiple conspiracies and related offences.

Arguments of the Parties

Appellant's Arguments

• Disparity in sentencing between the Appellant and co-defendants was unjustified given similarities in their roles, especially between the Appellant and Co-defendant B.
• Double counting occurred by treating the Appellant’s prior steroid conspiracy convictions and bail status as separate aggravating factors, though they arose from the same overall offending conduct.
• The totality principle was not properly applied, resulting in a sentence disproportionate to the overall criminality and inconsistent with co-defendants’ sentences.
• Mitigation, including positive community contributions and family responsibilities, was not adequately considered compared to credit given to co-defendants.

Respondent's Arguments

• The sentence was not manifestly excessive; the sentencing judge properly considered all facts and circumstances.
• Differences in roles, levels of culpability, and aggravating and mitigating factors fully justified the sentencing disparities.
• No double counting occurred; the aggravating features were distinct and appropriately factored into sentencing.
• The totality principle was correctly applied both in relation to the offences sentenced and considering prior sentences for the steroid conspiracy.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court emphasized that the sentencing judge had extensive familiarity with the case, having managed it over two years and conducted a four-day Newton hearing. The judge was entitled to classify the Appellant’s role as category 1 leading role for the two principal conspiracies, each with a starting point of five years and a range of four to eight years. The judge lawfully imposed consecutive sentences to reflect the totality of the criminality.

The court accepted the large quantity of drugs and the Appellant’s multiple aggravating features, including his leadership, use of a legitimate business as cover, recruitment of others, persistence in offending while on bail, and attempts to obstruct police investigation. These justified a significant upward adjustment beyond the category range.

Mitigation was modest, and the late guilty plea warranted a 10% reduction, which the judge applied generously. The court found the judge took appropriate account of totality, including the prior steroid conspiracy sentence, ensuring the overall sentence was proportionate and not excessive.

The court rejected the argument of sentencing disparity, noting significant factual and role differences between the Appellant and co-defendants. The Appellant was the prime mover and driving force behind the operation, justifying a more severe sentence. The court held the sentence reflected the whole of the criminality, was neither unjust nor disproportionate, and was not manifestly excessive.

Holding and Implications

The appeal is dismissed.

The court upheld the sentence of 9 years and 6 months’ imprisonment imposed on the Appellant. The decision confirms that sentencing judges may impose consecutive sentences for multiple conspiracies involving large-scale drug offences and that prior related offending and bail status may properly aggravate sentence without constituting double counting. The ruling underscores the importance of individualized sentencing reflecting the offender’s role, culpability, and mitigation. No new legal precedent was established beyond affirming established sentencing principles and the proper application of the totality principle.