Khan & Ors, R v [2013] EWCA Crim 800

[2013] EWCA Crim 800No. 2012/21357/A3, 2012/02474/A3, 2012/02466/A3 & 2012/02468/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 26 April 2013
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE BURNETT
and
Venue THE RECORDER OF LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
R E G I N A
- v -
KAZIM ALI KHAN
UMAR KHAN
MOHAMMED ARFAN KHAN
MOHAMMED AHSAN KHAN
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Mr N James appeared on behalf of the Appellant Kazim Khan
Mr C Strachan appeared on behalf of the Appellant Umar Khan
Mr C Sherrard QC appeared on behalf of the Appellant Arfan Khan
Mr M Lawson appeared on behalf of the Appellant Ahsan Khan
Mr T Little appeared on behalf of the Crown
J U D G M E N T
Friday 26 April 2013
Between
Khan & OrsDefendantRCrown
[1]For convenience, and without intending disrespect, we shall refer to the appellants respectively as Umar, Arfan, Ahsan and Kazim.[2]Each of them pleaded guilty in late 2011 or early 2012 in the Crown Court at St Albans before His Honour Judge Plumstead. All of them admitted a conspiracy to supply Class A drugs.[3]In addition, Kazim, whilst on bail for that matter, committed two further offences: one of supplying a Class A drug, the other of possession of a Class A drug with intent.[4]Umar and Arfan were sentenced to nine years' imprisonment. Ahsan was sentenced to seven years' imprisonment. Kazim was sentenced to a total of seven years' imprisonment, representing five years for the conspiracy, with two years consecutive for the offences committed on bail. Credit was given for time spent on remand. There were ancillary orders relating to forfeiture.[5]Five other men involved in the offending were also sentenced. They include Jabraan Azlam, who pleaded guilty to the conspiracy on re-arraignment and was sentenced to four years' imprisonment.[6]The facts show that over a nine month period between September 2010 and May 2011 the police conducted an investigation into the supply of heroin and cocaine in the Watford area. A test purchase officer was deployed. He met drug users and was subsequently introduced to suppliers. There were more than 100 days on which such supply activities took place during the period.[7]Many individuals were involved in supplying the drugs. Some of them were children under the age of 16.[8]The drugs were sold in deals of £20 each. The supply was operated through a single telephone number. Umar and Arfan were in control of the line. Ahsan and Kazim were lower down the hierarchy, themselves dealing, but also with some responsibility within the organisation, such as safeguarding the drugs or acting as minders for others.[9]Customers would be told where to go to meet the dealer. If the caller was not known to the person manning the central telephone, they would be refused service or would have to get someone else to vouch for them.[10]The income from the conspiracy was up to £17,000 per week. The judge calculated from records which were seized that more than 5 kilos of Class A drugs had been supplied. He described it as an organised business to exploit people.[11]There were three addresses linked to the supply. One was a "safe house" where drugs were stored and where a room was used for cutting and wrapping the drugs. There was strong evidence linking Umar and Arfan to that address. Both cocaine and heroin was found there. Umar's fingerprints were found on many of the wraps sold to the test purchase officer, as were Arfan's, albeit to a lesser extent.[12]Ahsan Khan was trusted by those above him, namely Arfan and Umar. He did not deal drugs directly to the test purchase officer, but there was evidence of him being involved in drugs supply on 13 April 2011, during which time he was in phone contact with the central telephone.[13]On 8 May 2011 he went to one of two addresses used as a retail base. He remained there all day, whilst Kazim repeatedly entered and exited the address consistent with being involved in drugs supply. Throughout the day Ahsan was in contact with others involved in the conspiracy. In effect his role was to look after the premises from which a series of supplies was made.[14]Kazim operated as a drug runner. He was observed on some seven occasions between February and May 2011. On occasions he attended the home address of a dealer called Alcott, who sold drugs to users on behalf of the conspiracy. In effect on those occasions he minded the premises whilst Alcott was out dealing on the street. He also visited the address which was used for cutting and wrapping the drugs into individual deals, and a second retail address from which he admitted doing drug deals.[15]The offences which he committed on bail represent a supply of drugs on one occasion to a female test purchase officer. On that occasion he conducted a full body search before supplying the drug. On his arrest, some three months later, his home was searched and about 22 grams of heroin were found.[16]When the judge came to sentence, he described Umar and Arfan as ringleaders, with Ahsan and Kazim as trusted assistants, playing a lesser, but substantial role. The Crown and the judge put Kazim at a lower level of responsibility than Ahsan. Kazim's case was aggravated by offending on bail. Credit was given for guilty pleas, but reflecting the stage at which they had been tendered.[17]Umar is aged 32. He had three previous convictions recorded for possession of Class A or B drugs in 2010. Arfan is aged 28. In November 2003 he was sentenced to seven years' imprisonment for offences of possession of Class A drugs with intent to supply. Ahsan is aged 25. His previous convictions include offences for which he was sentenced in September 2006 for possession of Class A drugs with intent to supply or actual supply. He received three and a half years, no doubt in part a reflection of the fact that he was still in his teens at the time. Kazim is aged 21. He has no relevant previous convictions.[18]The sentencing guideline on drugs offences came into effect on 27 February 2012. It therefore applies in this case. Before the judge there was some discussions about whether the guidelines applied to a conspiracy offence. The appellants also submitted that since the activity involved in this case concerned the supply of drugs to users or test purchase officers on the street, this case should be dealt with within the confines of category 3 of the relevant guideline, which provides:
"Where the offence is selling directly to users (street dealing), the starting point is not based on quantity."
Thus it was argued, notwithstanding the scale of this operation, that the judge was obliged to sentence within the confines of category 3 of the guideline. Mr Sherrard QC, who appears on behalf of Arfan, has today made a modified version of that submission in which he concedes that the judge could take account of the quantity supplied in the course of the conspiracy by moving his client up to category 2.[19]In passing sentence the judge said that this was a conspiracy, it was not an incident, or even one or two incidents. It was a process. The guidelines did not specifically deal with this type of situation. He did not consider that this sort of conduct was intended to be restricted to category 3. He said:
"Those who engage in a conspiracy agree to the commission of a crime -– in this case to the commission of many crimes. .... It is suggested that because the sales took place on the streets .... that I should treat this as category 3 -– that is, street dealing. I am sure that must be wrong. If it is to be assessed as within the guidelines I must regard this as much more a category 1 case. Over the period of the conspiracy many kilos of drugs, I am perfectly sure, went through the hands of those who played their individual roles. Any one of them may never have seen more than a dozen, or twenty bags at a time, but anyone involved must have realised the scale was as I have indicated –- hundreds of bags a day, everyday -– no holidays, no days off. This was a two-shift .... seven day a week operation."
[20]In giving leave the full court felt that there were questions of importance relating to the scope of the guidelines which need to be considered. They include whether the guidelines apply to conspiracies at all. If so, how the guidelines operate in those circumstances, and whether in the course of a large scale conspiracy the offending should be dealt with as a category 3 offence because it involves street dealing.[21]Although the relevant guideline only refers expressly to supplying, or offering to supply, or possession of a controlled drug with intent to supply, it is clear to us that the guideline should be applied to an offence of conspiracy to supply a controlled drug. The contrary has not seriously been argued before us. The real issue is how the guideline should be applied in the sort of situation already described.[22]However, before we turn to that question, we justify our conclusion that the guideline should apply to a conspiracy offence by consideration of the following matters. Firstly, there is no positive exclusion of a conspiracy offence as within the guideline. The situation is different from that in the Sentencing Guidelines Council's guideline on fraud offences which specifically excludes conspiracy to defraud.[23]Secondly, the guideline does not explicitly comprehend inchoate offences such as attempts. Yet we doubt that anyone would argue that they are not covered; the fact that the offence was not complete can be sensibly reflected in adjusting the sentencing levels.[24]Next we observe that there is a substantive offence of being concerned in the supply of a controlled drug contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and an allied offence under section 4(3)(c). We doubt if any sensible submission could be made that those offences are not covered by the guideline, although they are not specifically referred to.[25]In the period which has elapsed since the guideline came into force, constitutions of this court have already applied the guideline in cases of conspiracy to supply (see, for example, R v McCalla [2012] EWCA Crim 2252).[26]Of particular importance is the fact that prosecuting practice varies as to whether to charge a conspiracy or the substantive offence. Many supply offences will involve more than one person so that they could be charged in either way. It would be anomalous for commonplace criminal activity to be inside or outside the guideline depending on the way a prosecutor has chosen to frame the charge.[27]Moreover, much of the language within the guideline with its reference to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation, awareness and understanding of the scale of the operation, and performing a limited function under direction is entirely consistent with an activity which could be charged as a multi-offender conspiracy.[28]For these reasons we are satisfied that in cases of drugs supply which are charged as a conspiracy, the guideline should be used.[29]We turn to how the guideline should be used. The starting point is to recall that a guideline represents guidance. It is not some rigid framework. It is not to be construed like a statute. Judges and practitioners are expected to approach the guideline with a degree of common sense and flexibility. As Hughes LJ said in R v Healey & Others [2012] EWCA Crim 1005 (at paragraph 9):
"It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations."
[30]In Attorney General's Reference Nos 15, 16 & 17 of 2012 [2012] EWCA Crim 1414, [2013] 1 Cr App R(S) 52, Hallett LJ said (at paragraph 12):
"The categories do not provide some kind of straightjacket into which every case must be squeezed. Few offences and few offenders will match exactly the categories provided. One offence or one offender may straddle a number of categories. There may be more than one offence involved in which the offender has played different roles. More than one drug may be involved. .... The judge must do his or her best to reach a fair assessment of the overall offending, namely culpability and harm, before proceeding to the next stage (step 2)."
[31]Very often a judge using the guideline will be dealing with a single substantive offence. However, there will be situations in which the judge is sentencing in relation to more than one count. It may be appropriate for the judge to aggregate the quantity of drugs represented in individual counts so as to move to a higher category based on total indicative quantities of the drug involved, and thus truly reflecting the nature of the offending before the court.[32]Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved.[33]Of course involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy.[34]However, a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality.[35]As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability.[36]We turn then to the important question raised in this appeal concerning the judge's refusal to deal with this matter as a category 3 street dealing case.[37]The argument that the judge is constrained to put these offenders within category 3 of the guideline because the end point activity of this conspiracy was street dealing is, in our judgment, wholly unrealistic. The appellants have pointed to the wording that the "starting point is not based on a quantity" when the offence is street dealing. Such a submission flies in the face of common sense, because categories are assessed in relation to the harm done, which itself is reflective of the amount of the drug put into circulation (or is likely to be).[38]The harm done plainly must be driven by the scale of the drug supply falling to be sentenced. The idea that a defendant involved in an operation which resulted in the selling on the street of a few grams of heroin should be dealt with within the same category as someone who has succeeded in putting a number of kilos of the drug on the street is nonsensical.[39]The reason why the wording set out appears in the category 3 box is because ordinarily an episode of street level supply will involve the very small quantities of drug comprehended by category 4.[40]Because it was recognised that dealing on the street even in those small quantities involved harmful criminality over and above that caused by the small quantity of the drug, the Sentencing Council as a matter of principle raised what would otherwise be category 4 offences into category 3. That this was its intention can be seen by its Response to Consultation:
"An exception has been created for .... street dealers.... For these offenders the quantity of drug recovered is less representative of the harm caused because the nature of the activity involved means that only small amounts of drugs can be carried by the offender. Therefore, for the purpose of assessing harm at step 1 .... street dealers will always fall within category 3, irrespective of the quantity involved."
These observations are echoed at page 10 of the definitive guideline which provides: 41. "Where the offence is street dealing .... the quantity of the product is less indicative of the harm caused and therefore the starting point is not based on quantity."[41]The plain intention was to move what would otherwise be category 4 offending into category 3. That is the genesis of the phrase "the starting point is not based on quantity".[42]That is not, however, a justification for those who are involved in street dealing of quantities which in aggregate go far beyond the amounts shown in category 4 to have a licence to limit themselves to category 3 no matter what the scale of their dealing is in aggregate. Thus in this case the judge was correct to reject the submissions that he was confined to category 3. Taken literally, the phrase used in the guideline relating to category 3 insofar as it concerns street dealing is misleading, but we are entirely satisfied that it should be read as applying where lesser quantities which would normally come within category 4 are being supplied in a street dealing operation.[43]Given the quantity of drugs supplied in this conspiracy, which was operated intensively over a significant period of time and running into at least several kilos of drugs supplied, the judge was entirely justified in putting into category 1 those who were involved in directing or organising this commercial activity for several months, namely Umar and Arfan.[44]In relation to Ahsan Khan, there was a basis of plea which limited his involvement to two particular days during the conspiracy. There is no doubt that his role was properly regarded as a significant one. But it seems to us that since his involvement was limited to those two days, the correct approach would not be to treat him as a category 1 offender as if he were involved in the supply of several kilos, because plainly that is not the case.[45]On the facts of the case it would be appropriate to put him into category 3 in a significant role, but to move him up the range from the starting point, initially to reflect the significant trust which was reposed in him and the fact that he was involved in a conspiracy, and then take account of his previous conviction for supplying Class A drugs.[46]Kazim was involved over a longer period of time than Ahsan. He was involved on a number of occasions between February and May 2011 and his case is complicated by the fact that he committed offences whilst on bail. We shall return to his case later.[47]We now turn to the individual appellants. Umar was acknowledged to be a ringleader in this operation. He purchased the drugs telephone line and paid the costs of running it before paying others out of his profits. He was involved in the "safe house" for storage of the drugs, and directly in the cutting and wrapping operation. He was involved over a period of several months in a leading role at the top of the chain. He clearly directed and organised this offending on a commercial scale. His arguments are that his sentence was too long; that he received the same sentence as Arfan, even though he did not have the significant conviction which Arfan did; he also argued that the judge should have dealt with him as a category 3 offender.[48]We have already rejected that last argument for the reasons given. As indicated, we regard this as a category 1 offence with Umar in a leading role. The guideline shows the starting point of 14 years. He pleaded guilty at a stage which entitled him to full credit. The sentence of nine years' imprisonment reflects that. We do not consider that his sentence was either excessive or wrong in principle. His appeal is dismissed.[49]The judge regarded Arfan as an organiser and a ringleader. In passing sentence he said that he and Umar were rightly categorised by the Crown as the leaders. Arfan undoubtedly fell into category 1 for the reasons already given. He undoubtedly had an important role in this conspiracy. On occasions he had control over the phone line. He was involved with the "safe house" and the activities there. On the day of his arrest some 62 wraps were found in the possession of one of his runners.[50]The Crown accept that Umar Khan's role was somewhat greater than Arfan's, but point out that Arfan has the significant aggravating feature of the long sentence imposed in 2003 for Class A supply offences.[51]Arfan's submissions raised the street dealer point which we have dismissed. He also submits that, based on a hearing before the same judge on 22 March, the day before sentencing, there was a legitimate expectation of a lesser sentence.[52]We have read the transcript. It is clear that on that occasion, which arose in the context of a proposed basis of plea and the possibility of a Newton hearing, the Crown accepted that Arfan's role should be characterised as at "towards the top of significant" within the guideline. That was repeated and the judge accepted the position. He indicated that a Newton hearing would not be required on the issue.[53]Those comments appear to us to have created a legitimate expectation on the part of Arfan that he would be treated as being in a role below that of a leading one.[54]There was then some further discussion between counsel and the judge, which counsel prefaced as being by way of assistance and "obviously not binding on anybody". Counsel contended for a seven to ten year bracket, but acknowledged the aggravating feature of the previous conviction. The judge did not dissent in terms. But in our judgment he did not make any commitment or observation which would raise any legitimate expectation beyond indicating that he wanted to be reminded of those submissions at the sentencing hearing.[55]We do not accept that in this respect any legitimate expectation was created. Accordingly, applying the guideline, Arfan is to be dealt with as a category 1 offender in a significant role. The guideline shows that as having a ten year starting point with a range of nine to twelve years.[56]Arfan's case must move up to reflect that, consistent with what had been discussed the preceding day, his role was to be regarded as towards the top end of a significant role; and secondly, on account of the fact of his aggravating previous conviction. In our judgment, this would take him up to twelve years.[57]The judge had indicated that Arfan was entitled to full credit for his guilty plea. We consider that, taking account of that, the sentence imposed was too long, and we substitute a term of eight years for the nine which was imposed. To that extent his appeal is allowed.[58]In the case of Ahsan we have already commented that, having regard to his basis of plea, the court should begin at category 3 as a significant role. However, it must then move upwards to reflect the fact that Ahsan was involved in a conspiracy rather than a substantive offence, and up again to reflect his previous convictions for drug offences.[59]The judge took a starting point of ten years, which would put Ahsan in a significant role in category 1. We think this was too high. We consider that a sentence of seven years was appropriate prior to credit for the guilty plea. That is at the top of category 3 in a significant role. The judge fixed credit for the guilty plea at 25%. Accordingly, we allow the appeal by substituting a term of five years and three months.[60]In Kazim's case we think it helpful to look at the overall sentence of seven years. His position is much aggravated by the commission of offences on bail at a time when the conspiracy had already come to an end. The offences themselves are separated by several months in time and represent a continuation of his previous activities.[61]On the last occasion Kazim was not acting as a runner for somebody else. He clearly had a small stash at home ready for supply. His involvement in the conspiracy showed him at times operating as a runner in a street operation, but also on occasion involved at a somewhat higher level.[62]He was the youngest of the Khan cousins involved in this offending. He did not have relevant previous convictions. He complains that in relation to the conspiracy there was a degree of disparity with Jabraan Azlam who received four years. We are not persuaded. Jabraan Azlam was dealt with as a runner, pure and simple, without the element of additional trust which was identified in Kazim's case. Moreover, he was entitled to significantly greater credit for his guilty plea.[63]As we have stated, Kazim's position is complicated by his offending on bail. In his case only 10% was allowed as credit on account of his plea of guilty, since it was tendered only a few days prior to trial. That is criticised, but we are not persuaded that the judge was wrong in that respect. Looking at Kazim's overall involvement in these matters, we conclude that the extent of his involvement was not such as would justify his inclusion in category 1. Like Ahsan, we conclude that he best fits into category 3 as a reflection of the scale of his involvement in drug distribution, with a significant role reflecting his activities. This gives a starting point of four years six months. This figure is to be increased to reflect the fact of involvement in a conspiracy, but adjusted to reflect some credit for the guilty plea, his age and his previous relative good character.[64]In the circumstances, we do not consider the term of five years imposed by the judge in relation to the conspiracy was manifestly excessive. However, the picture has to be considered as a whole. The overall sentence of seven years, which reflects the offences committed on bail, is one about which no possible complaint could be made. Accordingly, the appeal of Kazim is dismissed.

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