Ali & Anor, R. v [2007] EWCA Crim 1843

Case No 200700037 A9[2007] EWCA Crim 1843
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 5th July 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE STANLEY BURNTON
HIS HONOUR JUDGE CHAPMAN
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
R E G I N ACrownv
Between
ZAHEER ALITARIQ MAHMOOD
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Iqbal appeared for Applicant, Ali.Mr B Mahmood appeared for Applicant, Mahmood.
J U D G M E N T

LORD JUSTICE GAGE:

[1]Zaheer Ali is now aged 22 and Tariq Mahmood is 35. On 24 November 2006, at Sheffield Crown Court, each of these two appellants pleaded guilty to conspiracy to transfer prohibited weapons. On 27 November they were sentenced as follows: Ali to four years' imprisonment, the judge ordered that three days, which he had already spent in custody, should count towards his sentence; Mahmood to eight years' imprisonment, the judge directed that 171 days, that he had already spent in custody, should count towards his sentence.[2]Each of them appeal by leave of the single judge. There were two co-accused: Mazhar Ali pleaded guilty to conspiracy to transfer prohibited weapons and conspiracy to acquire ammunition. He also pleaded guilty to possession of a Class A drug with intent to supply. He was sentenced to a total of six-and-a-half years' imprisonment, made up of three-and-a-half years in respect of the weapon offences and three years for the drugs’ offence. The fourth co-accused, Ishfaq Ali, pleaded guilty to conspiracy to transfer prohibited weapons. He was sentence to five years and four months' imprisonment.[3]The facts can be shortly stated and are as follows. In May and June 2006 the police carried out observations on Tariq Mahmood. As a result of those observations, all four defendants were arrested on 7 June 2006. The observations revealed that Mahmood was seen to be connected with two vehicles, a black SAAB and a Ford Fiesta. On 7 June 2006, there was evidence of telephone contact between Mahmood and all four defendants. Zaheer Ali was in contact with Ishfaq Ali by telephone on that date. Later on that day there was a call from Mahmood to Mazhar Ali to set up the handover of two guns, silencers and 90 rounds of ammunition. They were later recovered from the Ford Fiesta in circumstances which we shall now describe.[4]On that day, 7 June, Zaheer Ali and Ishfaq Ali, were seen travelling in the Black Ford belonging to Mahmood from Bradford to Sheffield. In Sheffield the vehicle was seen in the area of White Thorns. Those two men and Mahmood then met. Zaheer and Ishfaq then drove off in the Fiesta and the SAAB. Both cars were next seen parked on Avenue Road. About five minutes later Mazhar Ali approached the vehicle carrying a carrier bag. He put the bag in the rear of the vehicle. Both the SAAB and the Fiesta then drove to a petrol station. When they were there they were seen by the police and arrested. The bag in the rear of the Fiesta, driven by Zaheer Ali, was found to contain two handguns, two silencers and 90 rounds of ammunition.[5]At the same time that these two men were arrested Mazhar Ali was arrested at his home address. A subsequent search of those premises revealed four handguns, six silencers and a quantity of ammunition, which had been delivered to Mazhar Ali's home on an earlier occasion. There was also discovered to be one-and-a-half kilos of heroin in the house. Mahmood was arrested on the same day.[6]In the course of his interview Mazhar said that all the guns and ammunition belonged to Mahmood as did the drugs. Mahmood was not charged with any drug-related offence in connection with this matter. Mazhar said that he had been forced to look after them for Mahmood. Zaheer Ali said that he had gone to Sheffield with Ishfaq Ali to collect the Fiesta. He did not know what had been placed in the rear of the car by Mazhar. Mahmood made no reply to any questions asked of him at interview. At the sentencing hearing Mahmood denied that he had exerted any pressure on Mazhar to take the guns and drugs.[7]Zaheer Ali, as we have said, is now aged 22. He had one caution in April 2005 for possession of an offensive weapon, however the judge treated him as a man of good character.[8]So far as Tariq Ali is concerned, he had six previous court appearances for seven offences between June 1990 and June 2003. The judge said of them that there was nothing of a similar character to the matters which he had to be sentenced for. There were no pre-sentence reports before the court.[9]The grounds of appeal are as follows: on behalf of Mahmood Mr Singh, who appears before this court and had advised Mahmood up to, but not at the date of the sentencing hearing, makes essentially three submissions. First he submits that insufficient credit was given by the judge for Mahmood's guilty plea. The facts are that Mahmood appeared at court first in September 2006. On that occasion he was not arraigned. The prosecution indicated that further material was to be served.[10]On 13 November 2006, in a letter from the Crown Prosecution Service to the court manager of the Sheffield Combined Court Centre, which was seen by Mahmood's adviser, the CPS indicated that further material was to be served and that an application might be made to amend the indictment. In fact, we are told that there were discussions between prosecuting counsel and defence counsel, Mr Singh, which resulted, on 24 November, in Mahmood and the other two defendants pleading guilty to count 1 on the indictment, which was count 1 on the original indictment. The trial had been listed for the following week and they were sentenced four days later.[11]Mr Singh submits that Mahmood was entitled to wait until the prosecution had served all its material and decided how to put its case. Each case will turn on its own facts, but in our judgment the difficulty with the submission made by Mr Singh, on behalf of Mahmood, is that he could have admitted his guilt when he was first interviewed. In fact he did not. He could have indicated a willingness to plead guilty at the hearing in September. He did not. In marked contrast his co-accused, Mazhar Ali, admitted his part in the offence when first interviewed by the police. He pleaded guilty, or at least indicated a willingness to plead guilty, in September 2006. The applicant could have done the same, if he had chosen to. In our judgment the judge was quite correct when he said that Mahmood was only entitled to a very limited credit for his guilty plea.[12]Secondly, Mr Singh submits that there is a disparity of sentence when Mahmood's sentence is compared with that passed upon his co-accused, Mazhar. There is, in our judgment, nothing of substance in this submission. In his sentencing remarks the judge made clear that Mazhar was in a very different position. Not only was he entitled to full credit for his pleas of guilty made at the earliest opportunity, he had co-operated with the police and made a statement implicating the others. Clearly he was entitled to be dealt with on an entirely different basis.[13]Finally, Mr Singh submits that the sentence passed upon Mahmood indicated too high a starting point before credit for a guilty plea, since it was too close to the maximum sentence of ten years for this particular offence. In addition he referred the court to the Attorney General's Reference (No) 120 and 121 of 2004 1 Crim App R (S) [2006] 44. This was a very different case where the offenders were charged with three different conspiracies, all connected with the manufacture and supply of guns and ammunition. In our judgment it affords little assistance in this appeal.[14]So far as Ali was concerned, on his behalf Mr Iqbal makes a number of submissions. They can be summarised as follows: it is submitted that he was only involved in the conspiracy on the one day, namely 7 June. His involvement, it is submitted, was very limited and he was unaware that there were weapons in the car which he was driving until he heard a clunk of metal and telephoned his co-accused, Ishfaq Ali. He was then told that what he was carrying was weapons.[15]Reliance is placed on his guilty plea. It is accepted that it was tendered at a late stage, but, as the judge took into account, it was notified a little earlier. Mr Iqbal draws attention to this appellant's good character. He submits that there was no pre-sentence report which might have assisted the judge in setting the appropriate sentence.[16]In sentencing these two appellants and their co-accused

the judge said:

"All four of you in a variety of ways were involved in the professional distribution of firearms. This was a professional enterprise and its only purpose could have been to supply other criminals with packages for them to use during their activities. In total there were six firearms. They all were brand new, having come from Russia, having been altered and without identification marks. Each was an automatic pistol and each was to be packaged with a silencer and 30 rounds of ammunition. It is clear to me that this falls towards the highest end of this type of criminality and, in this day and age, those who traffic in firearms will receive severe sentences and those are the types of sentences I intend to pass, all of them hopefully to act as some deterrent to other criminals who are minded to act in this way."
[17]We agree with the judge. These were serious offences. Gun crime in the cities of this country has become all too prevalent in recent years. Anyone found guilty of facilitating the unlawful dissemination of such weapons must expect to be punished severely. The judge described Mahmood as the organiser of the transportation and distribution of the guns. He pleaded guilty at a very late stage. In his case the sentence passed upon him was a severe sentence. In our judgment it was inevitable that he would receive a substantial sentence. As the judge said, there had to be an element to deter others. In the result we conclude that although the sentence was indeed severe, it was not manifestly excessive. His appeal is dismissed.[18]So far as Ali is concerned, he was, in the judge's assessment, the least involved and the least culpable. He pleaded guilty at a late stage, but gained some credit for his plea, which he had notified a little earlier. He is a young man of hitherto good character. In all the circumstances we conclude that the sentence passed upon him of four years was longer than was necessary, although not a great deal longer. We propose to quash his sentence of four years and for it substitute a sentence of three years and six months. To that extent, and for those reasons, his appeal succeeds.