Dincer & Ors, R. v [2006] EWCA Crim 3121

[2006] EWCA Crim 3121Case No 2006/01210
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HIS HONOUR JUDGE STONE QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 December 2006
Before
LORD JUSTICE PILLMR JUSTICE HODGETHE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL, CRIMINAL DIVISION
Between
THE QUEENRespondentDINCER & ORSAppellants
MR PETER CLEMENT for RespondentMR IAN JOBLING for Appellant Rafit DincerMR MARCUS BONNELL for Appellant Ruknettin BasbaydarMR MICHAEL HALL for Appellant Engin GundizMR RAMIZ GURSOY for Appellant Erdal OzmenMS KIM HOLLIS QC, and MISS JENKINS for Appellant Irfam ComoogluMR MICHAEL LAVERS for Appellant Etem GezenHearing Hearing dates : 16 November 2006
Judgment
[1]The proceedings involved eleven defendants charged with a variety of offences. On dates in December 2005 and January 2006, in the Crown Court at Woolwich before His Honour Judge Stone QC, each of them pleaded guilty to offences and were sentenced, though not all at the same time. Rifat Dincer pleaded guilty on 22 December 2005 on Count 1 of indictment 7301, an offence of conspiracy to commit blackmail (“the blackmail offence”) and an offence of conspiracy to commit arson being reckless as to whether life was endangered (“the arson offence”) (Count 4/7361). He was sentenced to 8 years imprisonment for each offence, the sentences to run concurrently. He was also ordered to return to custody to serve 45 days of an earlier period of imprisonment, to be served before the sentence of 8 years began.[2]Erdal Ozmen pleaded guilty, on 23 December 2005, to the blackmail offence, and to the arson offence. He also pleaded guilty to offences of wounding with intent to cause grievous bodily harm, (Count 2/7361) and possessing a firearm within intent committed on 2 October 2003 (Count 3/7361). He was sentenced on 17 February 2006, to 4 years imprisonment on the blackmail offence, and 4 years concurrent on the arson offence. This was to be consecutive to 11 years for wounding with intent, with 11 years concurrent with that for possessing a firearm with intent, making a total of 15 years imprisonment.[3]Irfan Comooglu pleaded guilty, on 27 January 2006, to the blackmail offence and the arson offence. On 10 February 2006 he was sentenced to 8 years imprisonment for each offence, the sentences to run concurrently, but consecutive to a sentence of 7 years imprisonment imposed at Snaresbrook Crown Court on 5 October 2004 for offences of causing grievous bodily harm with intent and of possessing a firearm with intent to fear or violence.[4]Engin Gundiz pleaded guilty on 22 December 2005 to the blackmail offence and to the arson offence. On the same day, he was sentenced to 4 years imprisonment for each offence, sentences to run consecutively, making a total of 8 years imprisonment.[5]Ruknettin Basbaydar pleaded guilty on 26 January 2006 to the blackmail offence. On 10 February 2006 he was sentenced to 8 years imprisonment. He was ordered to return to custody to serve 480 days of an earlier sentence, to be served before the current sentence began.[6]Etem Gezen pleaded guilty on 22 December 2005 to the arson offence and the blackmail offence. On the same day, he was sentenced to 8 years imprisonment on each count, the sentences to run concurrently but consecutive to a sentence of 6 years imprisonment imposed on 5 October 2004 for offences, committed jointly with Comooglu, of causing grievous bodily harm within intent and of possessing a firearm with intent to cause fear of violence.[7]Co-defendants Mehmet Aziz Karatas, Abdullah Baybasin, Sait Yuzen, Ibraham Kadir Aslan and Sinan Batall Gul each pleaded guilty to the blackmail offence. Aslan also pleaded guilty to wounding with intent, jointly with Ozmen, and to possessing a firearm with intent to endanger life and without a certificate. On the blackmail offence, Karatas and Yuzen were sentenced to 6 years imprisonment, Gul to 5 years and Aslan to 4 years. Aslan was sentenced to 12 years imprisonment concurrent on the wounding and firearm offences and 3 years imprisonment concurrent for possession of the firearm without a certificate, making a total of 12 years imprisonment. Baybasin was sentenced at a later date to 12 years imprisonment for the blackmail offence and 10 years imprisonment consecutive for an offence, on a separate indictment, of conspiracy to supply heroin, making a total of 22 years imprisonment.[8]The offences arose out of the activities of a Turkish Kurd gang known as the “Bombacilla”. Baybasin was the leader of the gang and, as the judge found, Basbaydar the second in command or Chief of Staff. They operated within the Turkish Kurdish community in North London and ruthlessly exploited their own countryman. They took a fee or a percentage from debts collected in respect of the sale or lease of property or from money lent by Baybasin. They collected protection money and practised extortion. They had access to weapons and used and threatened violence to achieve their ends. Substantial sums of money were obtained.[9]From April until the end of 2003, the police conducted a surveillance operation at the gang’s headquarters in Green Lanes, Haringey. The activities of the gang were covertly recorded on audio and video tapes which demonstrated the extent of individual defendant’s involvement. Not all the conspirators were criminally involved throughout the whole period.[10]On 2 October 2003, an attack was made in the vicinity of a petrol station in North London, in the course of which a large number of shots were fired. Halil Ates was targeted and injured. The judge described the offence as “gang warfare on the streets of London”. Ozmen and Aslan were recognised at the scene (Indictment 7361 counts 2 and 3). This was clearly a serious offence by them in its own right.[11]On the following evening, 3 October 2003, seven of the conspirators decided to use a petrol bomb at an off-licence belonging to the parents of the victim of the attack the previous night. Dincer was to throw the bomb and demonstrated to others how he would do so. He put a mask on his face and was claimed by the prosecution to have had a leading role in this offence. Gundiz drew a plan of the area and discussed the route to be taken. Ozmen’s part in the conspiracy was also demonstrated by the covert surveillance. Having set out on the enterprise, the appellants did not carry out the bombing for reasons which have not become clear. This was clearly a serious offence by them in its own right.[12]The other sentences imposed on Comooglu and Gezen had been passed by His Honour Judge Pitts at Snaresbrook Crown Court on 5 October 2004. Gezen pleaded guilty; Comooglu was convicted following a trial. They were involved in a raid on 5 September 2003 at a club in Crossway, Stoke Newington. The club was a social club used by members of the Turkish community. Gezen discharged a firearm two or three times into the ceiling. The purpose of the raid was to cause grievous bodily harm to those in the club. Judge Pitts described the case as “very serious indeed”. It was committed within the period of time covered by the conspiracy to commit blackmail but it remained unclear to the Crown whether the raid was pursuant to the principal conspiracy. Baybasin was told of the raid, on the evidence, only after it had happened. The prosecution accepted that they could have sought to join this offence to the main conspiracy. It will be necessary to return to the issue of the relationship of these offences to the blackmail and arson offences, for which sentences consecutive to that for this offence were imposed.[13]The judge made an assessment of the positions of the defendants in the hierarchy. Reference has already been made to Baybasin (leader) and Basbaydar (number two or Chief of Staff). Yusen was fairly senior, Karatas a senior negotiator and Comooglu, Gezen and Gul were enforcers. Dincer was near the bottom, Ozmen and Aslan a little above mere foot soldiers and Gundiz was the most junior and youngest member amongst the defendants.[14]When imposing sentences on 10 February 2006,

the judge said of the blackmail offence:

“The conspiracy to blackmail was an extortion racket, a mafia type operation run by Abdullah Baybasin. He had a large gang of thugs of whom you were part – the so called Bombacilla, or Bombers – and you acted as his thugs doing his dirty work. The racket was run against your own countrymen, the Turkish and Kurdish communities in North London, exploiting their terrified helplessness in the face of this organised gang. The racket was ruthless and violent, it extorted money on a large scale, it terrified its victims, and it did so by its toll of real violence, and threats of violence. It involved firearms, machetes, knives and a sword.”
[15]The judge described the offence as very serious. He recalled that he had in December stated that “a substantial discount on sentence was available for those pleading guilty in December”. He stated that he would take account of the mitigation and “do justice as between you, that is reflecting the relative seriousness of your offending”. When sentencing individual appellants, the judge did not specifically differentiate between them in terms of discount for plea.[16]When sentencing on 17 February 2006,

the judge described the other offences:

“The arson conspiracy involved a plan to firebomb premises, without care whether anyone would be injured and or killed. This is a very serious conspiracy as well, but I taken into account that the conspiracy was not, in the end, carried through. The wounding and the possession of a firearm with intent was a further serious crime which could easily have resulted in the death of Mr Ates, or other people. A number of rounds of ammunition was fired off in a pubic place. You [Ozmen] are indeed fortunate that you are not now convicted of an even more serious offence. I make due allowance in my sentence for the fact that you were not yourself the man wielding the gun.”
[17]Before referring to individual appellants, we consider the sentencing remarks of Judge Pitts when sentencing Comooglu and Gezen on 5 October 2004, that is before the current sentences, for the offence stated at paragraph 12 above. The judge referred to the forthcoming trial for the current offences and stated that he put them entirely out of his mind. The judge described the offence as “a joint enterprise to cause really serious bodily harm to the innocent customers of the club, aggravated by the carrying of a firearm to induce fear of violence”.[18]The judge stated that the attack was “some form of gang business”. He referred to the surveillance at 337 Green Lanes and to observation there of Comooglu and Gezen. He added: “You both were carrying out orders from above. Of that I have no doubt at all. I don’t think on this evidence for one moment that this was a raid that was actually planned by you for your own purposes. You were there acting as workers, or employees, if you like, for others more senior than you. … I think you were the workers carrying out … You nevertheless were senior personnel on the raid”.[19]The judge was in our view clearly correct in his assessment of the seriousness of the offences. Substantial custodial sentences were required in each case. Like the judge, we have in mind of course the need to sentence fairly as between appellants. Dincer, Comooglu, Gundiz and Gezen were each sentenced to a total of 8 years imprisonment for the blackmail offence and the arson offence, though in the case of Gundiz there were two consecutive sentences of 4 years and in the other cases concurrent sentences of 8 years. Basbaydar was sentenced to 8 years imprisonment for the blackmail offence alone. Ozmen was sentenced to a total of 4 years imprisonment for those two offences. In his case, the sentence was consecutive to that of 11 years for the offence of 2 October 2003. The sentences of Comooglu and Gezen were consecutive to those imposed on 5 October 2004. Mr Clement, for the prosecution, has produced a helpful schedule giving relevant particulars of each defendant.[20]Dincer is 40 years old. The judge referred to his previous conviction for affray for which the appellant was on licence during the period of the conspiracy. He was ordered to serve 45 days before beginning the current sentence and that ruling is upheld. He had served earlier custodial sentences. On his behalf, Mr Jobling relies on the low position of Dincer in the hierarchy. He had himself been a victim of the gang, and had been threatened, before he decided to join them. The police had taken a serious view of the violence inflicted on him. He had pleaded guilty on 22 December 2005. Dincer relies, as do other appellants involved in the arson offence, on the fact that the conspiracy lasted a short time and was not carried out.[21]Ozmen is 26 years old. Reliance is placed by Mr Gursoy, on his behalf, on Ozmen’s low position in the hierarchy and to the fact that, while Aslan’s sentence for the blackmail offence was made concurrent with that on the 2 October offences, Ozmen’s was made consecutive. Further, on 2 October, it was Aslan who handled the weapon and fired the shots, as the judge accepted. Ozmen received only one year less for that offence. Neither Ozmen nor Aslan had previous convictions. He is five years older than Aslan. The overall sentence was too long, it is submitted.[22]Comooglu is now 26 years old and has no relevant pre-Snaresbrook convictions. He too had suffered violence from other members of the gang. On his behalf, Miss Hollis QC submits that the sentence for the blackmail offence should have been lower than that imposed on Basbaydar having regard to their different positions in the hierarchy, though Basbaydar was charged with the blackmail offence alone. Miss Hollis submits that the judge had insufficient regard to totality, the sentence being ordered to run consecutively to that imposed at Snaresbrook. The offence considered there could have been incorporated in the overall conspiracy, as the prosecution accept. Miss Hollis relies upon the sentencing remarks of Judge Pitts. Other members of the gang could have been, but were not, charged with serious substantive offences. While Comooglu did not plead guilty until late January, an indication had been given at the beginning of the month.[23]Gundiz is now 22 years old, 19 at the time of the offence, and was at the bottom of the hierarchy. He entered an early plea, the first to be tendered. The judge accepted that the plea was tendered “in the teeth of considerable pressure to do otherwise”. That notwithstanding, he received the same sentence as that imposed on others higher up, for example Dincer and, on his behalf, Mr Hall submits that the total sentence of 8 years was too long.[24]Basbaydar is 28 years old. He had pleaded guilty in 2002 to offences of purchasing or acquiring a firearm and possessing a firearm without a certificate. He was sentenced to a total of 3 years imprisonment and had become involved in the blackmail offence very soon after his release from prison. He had been expelled from the gang for a short time. On his behalf, Mr Bonnell submits that the judge had placed too great an emphasis on the appellant’s perceived position in the hierarchy and too little on the actual criminality of each defendant, to the disadvantage of Basbaydar.[25]Counsel further submits that the judge incorrectly calculated the unexpired portion of the previous sentence in that, in accordance with Section 116(8) of Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”), the date of the commission of the new offence should have been 16 February 2004, the closing date of the conspiracy charged in the indictment. The subsection provides that:
“Where the new offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days”
By virtue of section 116(1) and (2), the return to custody can only be as long as that part of the original sentence which remained on the day when the new offence was committed, that, it is submitted, being 16 February 2004. The total sentence is too long, it is submitted. Karatas, who had a senior position and was involved throughout the conspiracy, received only 6 years.[26]Gezen is 28 years old and, save for the Snaresbrook offence, the judge understandably took no account of his previous offences. The judge stated that the present offences “represent a further serious escalation of criminal activity”. On Gezen’s behalf, Mr Lavers makes the same submissions as to totality as were made on behalf of Comooglu. Judge Pitts had stated at Snaresbrook that Comooglu and Gezen were acting on orders and it was not suggested that they belonged to a gang other than this one. The Snaresbrook offence should have been treated as an act in furtherance of the general conspiracy.[27]It is further submitted that Ozmen’s sentence for participation in the two conspiracies was reduced to a total of 4 years imprisonment, the judge having regard to his long sentence for the wounding offence, and the same approach should have been adopted in the case of Gezen. Further, there was disparity in relation to Yuzen and Karatas who were senior in the hierarchy much received sentences of only 6 years (though they were not charged with the arson offence).[28]Before expressing our conclusions, we make general observations:(a) We consider that the judge’s approach to the level of sentences for particular offences was appropriate. Moreover by reference to the surveillance material, the judge had a good opportunity to assess the extent of each defendant’s participation. Where we allow appeals, it is on the basis that totality and relationship between offenders was inappropriately considered.(b) In relation to the arson offence we bear in mind that the substantive offence was not committed and that, compared with the blackmail offence, the conspiracy was of short duration.(c) We consider that the judge was justified in placing Basbaydar “near the top of the organisation” and in stating: “you were involved in giving instructions for violence; you were associated with the use of weapons; you were involved with the extortion of money”.(d) We are satisfied that appropriate credit was given for guilty pleas and that failure to give specific consideration in his sentencing remark to the dates of pleas has not in itself created unfair disparity.(e) We do not consider that that judge erred in law in requiring Basbaydar to serve 480 days of an earlier sentence. On the present charges and evidence, Section 116 (8) of the 2000 Act did not require the judge to calculate the period from 16 February 2004, the last date of the very long period of conspiracy charged. There was evidence of Basbaydar’s participation from early October 2003. The reference in the sub-section to an offence having been committed over “2 or more days”, apt for a substantive offence, was not apt, and was not intended, to cover an offence of conspiracy involving conduct over a long period of time.(f) We far from criticise the prosecution for proceeding on the Snaresbrook offence in advance of the main trial. Its features, including serious violence and threat of violence in a public place with many people present, made separate and prompt treatment appropriate. However, we find that there is force in the submissions on behalf of Comooglu and Gezen that, having regard to the sentencing remarks of Judge Pitts, greater weight should have been given on sentence to the context of the earlier offence in the overall criminality of the many offenders.(g) Ozmen has a legitimate complaint of disparity in that Aslan’s sentence for the offence of 20 October 2003 was ordered to run concurrently with that for the blackmail offence and his consecutively. No explanation was given by the judge.(h) However, when considering totality, we bear in mind that while Ozmen took a lesser part in that offence than did Aslan, he also committed the arson offence and Aslan did not.[29]Taking the above factors into account, our conclusions are:(a) Dincer’s appeal is dismissed, save that a sentence of 6 years concurrent, instead of 8 years concurrent, is imposed for the arson offence. Total sentence 8 years.(b) Ozmen’s sentence for the offence of 2 October 2003 will stand but will run concurrently with the sentences for the blackmail offence and the arson offence. Total sentence 11 years.(c) Comooglu is sentenced to 4 years imprisonment for the blackmail offence and 3 years imprisonment for the arson offence concurrent with each other but consecutive to the Snaresbrook sentence of 7 years imposed on 5 October 2004. Total sentence for current offences 4 years (overall 11 years).(d) The overall sentence on Gundiz is 6 years imprisonment. We achieve that by making the sentences for the blackmail offence and the arson offence consecutive, as did the judge, but reducing the sentence for the arson offence to 2 years imprisonment.(e) The appeal of Basbaydar is dismissed.(f) Gezen’s appeal is allowed to the extent of imposing a sentence of 4 years imprisonment for the blackmail offence and 3 years imprisonment for the arson offence, concurrent with each other but consecutive to the Snaresbrook sentence of 6 years imposed on 5 October 2004. Total sentence for current offences 4 years (overall 10 years).[30]Where appropriate in accordance with those conclusions, the sentences imposed by the judge are quashed and those stated in the previous paragraph substituted. Appeals are allowed to the extent stated above.