Sakaj, R v [2017] EWCA Crim 2312

Case No 201701326/A1

[2017] EWCA Crim 2312

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 21 December 2017

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MRS JUSTICE WHIPPLE DBE

MR JUSTICE GOOSE

Between

R E G I N ACrown

Between

LAVIR SAKAJ

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr B Singh appeared for Applicant

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 26th January 2017 in the Crown Court at Plymouth, this applicant pleaded guilty to an offence of conspiracy to supply a controlled drug of Class B, namely cannabis and an offence of possessing criminal property, contrary to section 329(1) (a) of the Proceeds of Crime Act 2002. On 24th February he was sentenced by Mr Recorder Mott QC to 4 years 6 months' imprisonment. His application for leave to appeal against that sentence was refused by the single judge. It is now renewed to the Full Court. We are grateful to Mr Balbir Singh for his very helpful and focused submissions.

[2]The applicant is now 32 years old, married with a young child. Before the matter with which the court is presently concerned he was a man with no convictions and of positive good character.

[3]We summarise the facts. Between February 2015 and January 2016 this applicant and others were engaged in trafficking cannabis from the West Midlands into Devon. There were two organised crime groups involved, one in the West Midlands, the other in Devon. The conspiracy lasted for at least 3 months. It involved at least six deliveries or transactions, each of which involved the movement of substantial quantities either of cannabis, or of cash or of both.

[4]The prosecution submitted that, on the basis of the cash and the drugs which were seized at various times, it was reasonable to infer that the six journeys collectively had involved about 50 kilograms of cannabis with a wholesale value of about £200,000 but a street value in excess of £500,000.

[5]The drug trafficking was initially set up by certain of this applicant's co-accused, namely Garvey and Hocking in Devon and Hasani in the West Midlands. After the first delivery of cannabis Hasani went abroad. He left this applicant, who is his brother-in-law, to run the West Midlands end of the operation. Hasani did not completely drop out of the conspiracy. He continued to be in phone contact with the applicant, and on occasions with Garvey and Hocking, and the applicant was to some extent acting on Hasani's instructions.

[6]Mobile phone call billing data showed periods of intensive activity between the various conspirators around the times of the deliveries. The evidence showed the applicant at such times to be in close contact with Hocking.

[7]The applicant was arrested in January 2016. Searches revealed that he had 10 mobile phones and SIM cards and over £9,000 in cash. Between February and July 2015 some £36,000 had been credited to his bank accounts, mostly in the form of large cash deposits. He had recently bought a car priced at £44,000, giving in part exchange one of the vehicles which had been used to transport drugs and money between the West Midlands and Devon.

[8]In interview the applicant admitted knowing Hasani and also knowing one of the several couriers who had been used for the purposes of the conspiracy, but he denied knowing any of the members of the Devon crime group. The learned Recorder accepted, in the light of an indication which had been given by another judge at an earlier stage, that the applicant should receive 25% credit for his guilty plea. The Recorder indicated, in our view correctly, that but for the earlier indication the applicant would not have been entitled to credit as great as that.

[9]Having regard to the quantity of cannabis involved, the case came within category 2 of the Sentencing Council's Definitive Guideline for sentencing for a substantive offence of supplying cannabis. Under that guideline a "leading" role in a substantive offence would attract a starting point of 6 years' custody, with a range from four-and-a-half years to 8 years. A "significant" role in such an offence would attract a starting point of 4 years, with a range from two-and-a-half to 5 years.

[10]The prosecution submitted that Garvey and Hocking were principal organisers and held leading roles throughout. They submitted that Hasani was a principal organiser in the early stages before he went abroad, and so had a leading role at least at the start. As to this applicant, the prosecution said, in opening the case to the learned Recorder, that the applicant:

"... appears to have taken over to an extent from Mr Hasani and acted partly on his instructions to run the West Midlands side of the operation and has a significant role. We would say it is a highly significant role."

[11]Later in the course of the opening address the learned Recorder questioned that assessment, observing that the case being presented to him appeared to show that the applicant had held a leading role, having taken over from Hasani as, in the Recorder's words, "the Lieutenant with full authority". Prosecuting counsel indicated that the prosecution regarded Hasani as having continued to some extent to pull the strings after he had left this country, so that in that respect this applicant was doing Hasani's bidding. The prosecution reiterated that it had been Hocking, Garvey and Hasani who had set up the trafficking conspiracy.

[12]The applicant's case, as put forward in mitigation before the learned Recorder by counsel, was that the applicant's involvement was entirely at the instigation and behest of Hasani. It was Hasani, not the applicant, who had connections with the Devon conspirators. Counsel submitted that the applicant had been in no more than a significant role in the conspiracy. Counsel relied on the applicant's previous good character, the testimonials plainly showing the good side of the applicant's character, the remorse expressed by the applicant and the personal mitigation available to him, in particular relating to the consequences of his imprisonment for his wife and child. To that favourable material which was presented to the learned Recorder, we should add a short prison report which has been provided to this court, for the purposes of this application, which again speaks in favourable terms.

[13]In his sentencing remarks the learned Recorder noted the prosecution submission that a total of over 50 kilograms of cannabis had been involved. He noted the submissions made to him that the total quantity could have been less than that, because not every journey necessarily involved both transport of money and transport of cannabis. He continued:

"But even if only half those journeys involved cannabis, the absolute minimum is over 25 kilograms. In either case, if one took that as a single consignment it would come into Category 2 of the sentencing guidelines. The indicative weights there are a guide to the scale and sophistication of the business and there is no doubt here that looking more broadly the level of the organisation fully justifies Category 2, and not just at the bottom of that category. The street value of the amount of cannabis could be anything between a quarter and half a million, depending on whether there were three or six journeys involving the drugs. There is no way of telling how long the conspiracy went on for, but it was at least three months, and that is the basis upon which I approach sentence. The purpose was, of course, to continue for a longer period, if it had not been brought to an end by police action, and the purpose was to make very substantial profits for the organisers. That, in my judgment, is an aggravating factor. I must not lose sight of the fact that this is a charge of conspiracy. Although, in my judgment, not enough to take it up to a higher category, it still has the effect in general of raising the offending in Category 2."

[14]Turning to the role played by individual offenders the learned Recorder said this at page 4H:

"Hasani played the leading role in setting up the operation in the West Midlands; Sakaj took over that leading role when Hasani left the UK. Even though initially Sakaj was acting under instruction, he clearly played a large part in most of the latter trips. Garvey and Hocking played leading roles in Plymouth."

[15]In relation to each of those four offenders the learned Recorder assessed the appropriate sentence after trial as being one of six-and-a-half years' imprisonment. In the applicant's case he reduced that to 6 years because of the applicant's positive good character. He then allowed 25% credit for the guilty pleas and so arrived at his sentence of four-and-a-half years' imprisonment for the drug trafficking offence, with a concurrent sentence of 12 months' imprisonment for the money laundering offence.

[16]The grounds of appeal, ably advanced by Mr Balbir Singh, are that the Recorder was wrong to assess this applicant as having a leading role in the offence, and that the Recorder failed to give sufficient weight to the personal mitigation available to the applicant. He submits to us this morning that the fact that the Crown had always placed this applicant into a significant rather than a leading role was an important factor to which the Recorder should have given greater weight. Mr Singh emphasises that although he was actively involved, this applicant was always acting under the supervision of his brother-in-law who had distanced himself from the hands-on work.

[17]Mr Singh points out that other offenders had previous convictions, including in one case a conviction for a firearms offence, and submits that a distinction should have been drawn between those offenders and this man of previous good character. Further, Mr Singh points to the apparent acceptance by the learned Recorder that the total quantity of cannabis might have been of the order of 25 kilograms rather than of the order of 50 kilograms. He points out that for a category 2 offence, under the sentencing guidelines the indicative amount on which the starting point is based is one of 40 kilograms. Finally, Mr Singh submits that this was not, in all the circumstances of the case, the shortest sentence which could have been passed.

[18]As to those submissions, we have reached the following conclusions. Although it is true that the prosecution put this applicant as playing "a leading significant" role, the Recorder did, as we have said, question that assessment in the course of prosecuting counsel's opening address. Defence counsel therefore had a full opportunity to address the point in his submissions, and in the end it was for the learned Recorder to make his own assessment. He was fully appraised of the details of the case and was in the best position to do so.

[19]It is important to emphasise that it would be an error to think that there can only be one person occupying a leading role in a drug trafficking offence. The fact that Hasani occupied a leading role does not in itself mean that this applicant's role could only be described as a significant one. It was, in our judgment, open to judge to find, as he did, that having taken over from Hasani once he had left the country, this applicant had "a leading role under supervision".

[20]As for the matters of personal mitigation on which Mr Singh relies, it seems to us that the learned Recorder did fully reflect those in making the reduction he did from the initial notional sentence after trial of six-and-a-half years, to one of 6 years before then giving credit for the guilty plea.

[21]Although previous good character was an important point in the applicant's favour, it has to be remembered that this was an offence of conspiracy. The Recorder was correct to regard that as a serious aggravating factor. The applicant's previous good character must, regrettably, be set against the context that for at least 3 months he was playing the important role he did in supplying controlled drugs into Devon.

[22]Standing back, this was, in our judgment, a serious drug trafficking conspiracy. It may be that the applicant had been drawn into it through his family connection and perhaps through family loyalty. It may be that he would not otherwise have become involved in such a serious crime. But he did become involved and he played one of the leading roles in the conspiracy over a period of months. He received what was in truth generous credit for guilty pleas entered at quite a late stage.

[23]In all the circumstances, we take the view that the total sentence of four-and-a-half years' imprisonment could not properly be described even as excessive let alone manifestly so. Accordingly, and notwithstanding Mr Singh's advocacy, this renewed application fails and is dismissed.