R v Victor Nzekwu & Anor [2025] EWCA Crim 734

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAMCase No 2023/02542/B2Case No 2023/02563/B2[2025] EWCA Crim 734
(HER HONOUR JUDGE KUBIK KC) [T20217657]
Venue Royal Courts of JusticeDate Thursday 20 March 2025
Between
R E XCrown
The Strand
London
WC2A 2LL
B e f o r e:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(Lord Justice Holroyde)
MRS JUSTICE McGOWAN DBE
MR JUSTICE NICKLIN
____________________
- v -
Between
VICTOR NZEKWUKASIM MOHAMMED____________________Computer Aided Transcription of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_____________________Mr T Forte appeared for Appellant Victor NzekwuMr T Schofield appeared for Applicant Kasim MohammedMiss K Robinson appeared for Crown____________________J U D G M E N T(Approved)
[1]Following a trial in the Crown Court at Birmingham before Her Honour Judge Kubik KC and a jury, Victor Nzekwu was convicted of an offence of conspiracy to evade the prohibition on the importation of a Class A drug (cocaine). He was sentenced to seven years six months' imprisonment.[2]With the leave of the single judge, he now appeals against both his conviction and his sentence.[3]Kasim Mohammed had pleaded guilty to the same offence. He was sentenced to 13 years six months' imprisonment. He appeals against that sentence with the leave of the single judge.

The facts

[4]In summarising the facts we shall for the most part refer to persons only by their surnames. We do so only for convenience and mean no disrespect.[5]The prosecution alleged a conspiracy between 31 May 2020 and 30 June 2020 to import five kilograms of cocaine. There was evidence of communications over the EncroChat platform involving Nzekwu (who admitted at trial that he used the EncroChat handle "EMG.enc"), Mohammed (whose handle was "MaskedTitan"), Naginder Singh Gill (whose handle was "IndianOcean"), and Media Murad (whose handle was "MoralFog").[6]On 4 June 2020, Gill flew to Amsterdam. Whilst there, he communicated with Mohammed. Mohammed in turn communicated with Murad, and arrangements were made for Gill in Amsterdam to meet persons who could supply drugs to be imported into the United Kingdom.[7]On 5 June 2020, Gill met with men referred to as "the Turks", following which he messaged Mohammed about the sale of drugs. Mohammed told Gill that he still had four kilograms of drugs from the Turks in stock which were proving difficult to sell. Mohammed later received a message from Murad regarding a communication he had received from someone with the EncroChat handle "NakedFisher". Mohammed then arranged for Gill to meet NakedFisher at a café in Amsterdam.[8]Gill went to that meeting on 6 June 2020. Whilst waiting for NakedFisher to arrive, Gill told Mohammed of an associate called "Vic" who wanted to import some cocaine using their methods and contacts. In an EncroChat communication, which appeared on line 109 of a prosecution schedule and to which we shall for convenience refer as "the line 109 message", Gill said:
"OK bro, Vic wants to buy a top. To put on tp. Can he call you direct. So u can get the top money over to. With ur guy."
Mohammed replied stating, "Not a problem for Vic, I'll do it wen I send mine". There was then communication between Gill, Mohammed, Murad and NakedFisher discussing the location of the meeting and identifying passwords, samples of drugs and prices. Gill and Mohammed also messaged each other regarding possible other sources of drugs in Amsterdam.[9]On 7 June 2020, Gill sent a WhatsApp message to Mohammed stating "Bro Vic will speak to you. U need to find out how much does he need to pass to you. To get his 28 Euro across". Mohammed then sent Nzekwu a message via EncroChat:
"I'm going to see my guy about % on getting money to flat"
. It was common ground that "flat" was a slang term for the Netherlands[10]On 8 June 2020, Mohammed arranged, through Murad, for Gill to collect a sample of cocaine and, if all was satisfactory, to purchase five kilograms of cocaine from NakedFisher at a price of 28,500 euros per kilo. There then followed messages between Nzekwu and Mohammed in which a purchase price of 28,500 euros was agreed, but with additional costs for the form of money transfer which was to be used and for transport. Nzekwu enquired whether the prices were in sterling or euros, to which Mohammed replied: "euros but confirm with nagi" (a reference to Gill). Nzekwu then gave Mohammed the address of one of Nzekwu's employees, from which the money was to be collected.[11]The money was collected. Mohammed then told Murad that he had £83,000 for three kilograms. Agreement was reached as to the money being delivered to Leicester.[12]There were then further messages between Mohammed and Murad, and NakedFisher and Murad to the effect that NakedFisher was to supply two kilograms for Mohammed, to be paid now, with profits to Mohammed; one kilogram for Nzekwu, to be paid now and to be passed to Nzekwu; one kilogram financed by Murad but to be sold by Mohammed, with Murad and Mohammed splitting the profits; and one kilogram financed by Murad but to be sold by Mohammed, with profits to NakedFisher.[13]Money was then collected. On 9 June 2020, Gill told Mohammed that the drugs would be leaving the Netherlands the following day and would be in the UK by 11 June 2020. There was then some reason why the transport was to be delayed, but messaging indicated that the drugs would be delivered on the following Monday, 15 June 2020.[14]On 13 June 2020, however, the administrators of the EncroChat system sent a message alerting all EncroChat users to the fact that the security of the system could no longer be guaranteed. Following that message, none of the persons we have mentioned, including Nzekwu, used their EncroChat handles again.[15]On 14 June 2020, Gill sent a WhatsApp message to his partner telling her that he was stressed because the transport was not leaving the Netherlands "because of that encro stuff". We note from later communications that at the end of June messaging was still referring to the proposed transport of the drugs to the United Kingdom. There is no clear evidence as to whether the drugs were in fact subsequently delivered.[16]Some of those whom we have mentioned were later arrested. When interviewed under caution, Nzekwu relied upon a prepared statement in which he said that he bought and sold mobile phones, including EncroChat devices and had had a company, EMG Commercial Limited, for approximately three years. His statement denied involvement in the conspiracy to import Class A drugs, or indeed any criminal activity, and stated, correctly, that he had no previous convictions or cautions. Thereafter, Nzekwu made no comment in interview.[17]Nzekwu, Mohammed, Gill and Murad were all charged with the conspiracy offence. Gill pleaded guilty. Mohammed, as we have said, also pleaded guilty. He did so at a late sage. Nzekwu stood trial. At the same time, Murad was tried in his absence. Both men were convicted.

The trial, and the judge's rulings

[18]Nzekwu's case at trial was that he had no knowledge of or involvement in a conspiracy to import cocaine. On the contrary, he was engaged in providing funds to Gill for the purchase of one or more diamonds.[19]That defence was outlined in Nzekwu's first defence statement, in which he said that he and Gill were old friends and that he had previously loaned money to Gill. The defence statement further said that Nzekwu had been involved in telecoms and communications devices for decades and had a legitimate business as a re-seller of EncroChat devices.[20]In a later addendum statement served towards the end of the prosecution evidence, Nzekwu said that he had been approached by NCA officers in July 2016 and had had meetings with other NCA officers in July, August and September 2016, in which he was asked to provide them with technical advice and insight into the encrypted mobile phone retail market. He had declined their request and said that it was against company policy to divulge any information about a client. He agreed to attend a longer meeting where he was questioned in order to gain an insight into his technical expertise and knowledge of the industry. He was asked general questions about the encrypted mobile industry. The defence statement went on to say that NCA officers further contacted Nzekwu again in July 2020, after the security of EncroChat had been breached.[21]In the light of that addendum defence statement, Nzekwu also sought further disclosure. An application was made under section 8 of the Criminal Procedure and Investigations Act 1996.[22]The judge ruled that whether or not NCA officers had approached Nzekwu in 2016, as he stated, had no bearing on whether or not Nzekwu had conspired with others to import cocaine from Amsterdam some four years later. She further held that, in the same way, any further contact with the NCA officers after the EncroChat devices were known to have been compromised by law enforcement agencies was irrelevant to the issue that the jury needed to determine, which was whether or not Nzekwu was a party to this conspiracy to import cocaine in June 2020. The section 8 application was accordingly refused.[23]In the course of the trial, Nzekwu served on the prosecution a report by Dr Ducan Campbell, an expert in electronics, computers and telecoms. The parts on which Nzekwu wished to rely were sensibly incorporated into draft agreed facts. The prosecution agreed most of those. In relation to those which remained in dispute, the effect of the judge's ruling was as follows:(a) The agreed facts did include Dr Campbell's findings that the two devices which had used the EMG.enc handle held 1,841 and 1,968 contacts respectively. They did not include Dr Campbell's statement that, having examined the data for between 150 and 200 EncroChat handles, those figures were much higher than his usual finding of ten to less than 100 contacts. The judge ruled that statement to be irrelevant and inadmissible.(b) The agreed facts did include Dr Campbell's finding that the data for EMG.enc did not contain any images of packages of cocaine or heroin, firearms, ammunition, or large collections of bank notes; whereas the data for MaskedTitan (Mohammed) did include multiple images of those types. None of the images in the MaskedTitan data had been sent to or received from ENG.enc. The agreed facts did not include Dr Campbell's comment that, to the best of his recollection of the 150 to 200 EncroChat handles he had examined, EMG.enc was the only one which did not contain such images. The judge ruled that Dr Campbell could report what he had found in this case, but that what others had done in other cases was irrelevant.

The submission of no case to answer:

[24]At the conclusion of the prosecution case, a submission was made that there was no case to answer. It was submitted that the line 109 message was insufficient to prove the case and that, in the absence of any other evidence that Nzekwu knew he was dealing with cocaine rather than anything else, no jury could find the necessary mental element of the conspiracy offence to have been proved.[25]The judge rejected that submission. She noted that it was common ground between the parties that the line 109 message meant:
"Vic wants to buy a kilogram of cocaine to go on the transport. Can he call you direct so that you can get his money for the cocaine over too with your guy"
. If that were true, said the judge, then those were clearly messages between Gill and Mohammed, who were proven conspirators, in furtherance of the conspiracy to import cocaine, because they were adding to the order for cocaine in the Netherlands, which was being negotiated at that time, and the messages implicated Nzekwu as seeking to join the company.[26]The judge noted that Nzekwu had not put forward any alternative explanation for the message when he was interviewed by the police.[27]The judge went on to hold that there was "a wealth of evidence" from which a properly directed jury could infer that Nzekwu was a knowing participant in a plan to import cocaine, that he made arrangements to pay for his share of cocaine in cash to Mohammed in order to share Mohammed's links to an illicit banking system, and that he received messages explicitly referring to the cocaine when faced with delays in its transportation back to the UK.[28]In reaching that decision, the judge referred to a number of features of the evidence to which the jury could attach weight. She noted that Nzekwu had been in contact with Mohammed directly concerning the methods of transferring money to the Netherlands via an equivalent of the Hawala banking system, and had also enquired about transport costs. The jury could regard that as evidence supporting the inference that Nzekwu was agreeing to import a commodity from Amsterdam and agreeing to pay for the commodity, the transport costs and a percentage of the cost of moving the money to the Netherlands. Further, Nzekwu was making the agreement to import a commodity from the Netherlands with Gill and Mohammed at a time when Gill and Mohammed were actively involved in negotiating and purchasing cocaine in the Netherlands. There was further evidence from which the jury could properly infer that Nzekwu had directed his employee to hand over a significant quantity of cash to Mohammed, using a password for that transaction. The prosecution evidence further confirmed that the sum of money handed over was consistent with the price for a kilo of cocaine at that time in Amsterdam, and consistent with the price that had been agreed between Mohammed and NakedFisher during the negotiations conducted through MoralFog. Furthermore, when delays were encountered following the breach of EncroChat, Gill had forwarded a series of screenshots to Nzekwu, which made explicit reference to "tops" (i.e. cocaine). Nzekwu’s evidence:[29]The trial accordingly continued. Nzekwu gave evidence in his own defence and called character witnesses. In evidence, Nzekwu confirmed that he knew "tops" to be a slang term for cocaine.[30]It was submitted that Nzekwu should be permitted to give evidence of his meetings in 2016 and 2020 with officers of the NCA. The judge repeated her earlier ruling that the meetings with NCA officers were irrelevant to the issue which the jury had to decide, namely whether Nzekwu had agreed with others to import a kilogram of cocaine from Amsterdam. She went on to say that, quite apart from their irrelevance, reference to the meetings with officers would lead to a multiplicity of subsidiary issues and the potential need for a PII hearing, which would have no probative worth and would distract the jury. She concluded that "the cardinal rule of evidence [is] that evidence which is irrelevant or insufficiently relevant to the issue in the trial should be excluded". She had ruled that the alleged meetings were irrelevant to the trial issues. It followed that any evidence about them was accordingly inadmissible.

Nzekwu's grounds of appeal against conviction

[31]Nzekwu advances three grounds of appeal: 1. The judge erred in considering as irrelevant the evidence relating to the NCA having meetings with the appellant, when they made it clear to him that they knew all about him and his business involving encrypted systems and devices.1.1 The material was relevant and therefore disclosure should have been ordered, so that questions could have been asked to the officer in the case about the meetings and what lay behind them;1.2 The appellant should have been permitted to say to the jury that he would not have knowingly involved himself in a serious criminal enterprise in the knowledge that the NCA knew all about him, his business and clientele. The order of the judge hamstrung a key aspect of his defence. 2. The judge erred in ruling that aspects of the report of the defence forensic expert, Dr Duncan Campbell, were not admissible in the case. 3. The Judge erred in refusing the submission of no case to answer at the close of the prosecution case.[32]In relation to ground 1, it was submitted in writing that the judge had identified the issue in the case too narrowly; that she focused on whether Nzekwu was a party to the conspiracy to import cocaine; and that she overlooked the important element of mens rea.[33]At the request of both parties, an ex parte disclosure hearing took place at which this court had the assistance of written submissions on behalf of Nzekwu. A disclosure note was subsequently provided by direction of the court to Mr Forte, who represents Nzekwu. The note confirmed contact by NCA officers in 2016, which had ceased in early 2017, with no further contact until after the EncroChat warning message had been sent out. The contact was made because the NCA considered that Nzekwu was knowledgeable about encrypted devices, given his role as an authorised re-seller of such devices. Further contact was made for the same reason on 17 June 2020, and two meetings took place later that month, but contact was ended by the NCA on 31 July. The disclosure note also indicated that the NCA had not at any of those times been aware of any EncroChat handle used by Nzekwu, or consequently of any EncroChat activity in which he had participated.[34]Having received that disclosure notice, Mr Forte submits, first, that it raises issues which may well have prompted further investigations and potentially further disclosure; and secondly, that it would have permitted Nzekwu to advance points as part of his evidence which he was not in fact able to advance. Mr Forte submits that it is not possible at this stage for this court to be sure what impact those points might have had on the jury. He argues that the conviction is accordingly unsafe.[35]In support of this first ground, Mr Forte went on to submit that there was nothing in the messaging in which Nzekwu personally had played a part which in any way betrayed a guilty conscience on his part. It was accepted that no messages had been sent by Nzekwu, using any form of platform, enquiring – either in late June 2020, or subsequently –what had happened to the diamonds for which he had paid a substantial sum of money.[36]As to ground 2, it is submitted by Mr Forte that the parts of the proposed agreed facts which were excluded by direction of the judge were of central relevance to Nzekwu's case: they showed him to be very different from other EncroChat users, and were therefore capable of strengthening his case and undermining the prosecution case. The exclusion of that material, it is submitted, resulted in unfairness. Mr Forte argues that this is not a question of admissibility. The issue for the jury would have been what weight to give to the additional information which he contends should have been before them.[37]As to ground 3, it is submitted that the line 109 message could only be admissible as evidence of Nzekwu's involvement in the conspiracy to import cocaine if it was an act or declaration in support of that conspiracy. It could only be so admissible if there was some other evidence to prove that Nzekwu was a party to such an agreement. Mr Forte submits that there was no such other evidence. Relying on R v Taylor [2001] EWCA Crim 1044 and R v Smart and Beard [2002] EWCA Crim 772, it is submitted that a person cannot be guilty of conspiracy where the only evidence against him of an essential element of the offence arises from the acts and declarations of another. In the present case that essential element is knowledge that the commodity being discussed was a controlled drug. Mr Forte goes on to submit that the other evidence in the case could not provide any admissible evidence that Nzekwu knew he was involved in an agreement relating to cocaine. It contained nothing from Nzekwu himself to relate him to any form of drugs, and the references to "tops" showed no more than that he was aware of the use of that word to refer to cocaine. On that basis, it is argued, no jury properly directed could convict and the submission of no case to answer should have been allowed.[38]Each of those grounds of appeal is opposed by the respondent, on whose behalf we have heard submissions from Miss Robinson. She argues that the limited information now disclosed could not have the impact on a jury for which Mr Forte contends. It does not, she submits, go to the central issue of knowledge of what was being imported. Furthermore, she argues that it shows the NCA officers contacted Nzekwu because of the nature of his business, three to four years before the events with which the jury were concerned. The disclosed information does not support the proposition that the police were aware of Nzekwu's EncroChat handle or of any communications he may have made through that platform. Miss Robinson adds that, given the nature of his business, Nzekwu of all people would know that until 13 June 2020 EncroChat devices were thought by their users to be effectively impregnable: messages passing between them could not be downloaded or intercepted.[39]Miss Robinson also draws attention to the chronology to which we have referred, showing that the drugs were due to have been delivered before the EncroChat warning message was issued, but were delayed after that warning.[40]At to ground 2, Miss Robinson makes submissions effectively supporting the reasons give by the judge for her ruling.[41]As to ground 3, she submits that there was, as the judge said, ample other evidence on which the jury could properly rely. Dividing that evidence into two broad categories, Miss Robinson refers to the evidence relating to the arrangements for paying for and transporting the commodity which was being purchased. She asks, rhetorically, why a deal relating to diamonds would require the payment of significant expenses for an unusual banking arrangement and transport. She also draws attention to what a jury could properly think was a quite remarkable coincidence that the sum needed to finance the diamond deal was exactly the price of a one kilogram quantity of cocaine.[42]In the second category, Miss Robinson puts the later WhatsApp messages in which Gill sent Nzekwu a number of screenshots relating to the movement of "tops". She asks, again rhetorically, why those messages would have been sent to Nzekwu if he was involved in relation to diamonds. The reality, she submits, is that the jury could regard those messages as updates in respect of the delayed delivery of the cocaine.

Analysis of the appeal against conviction

[43]We see some limited force in part of Nzekwu's ground 1. With respect to the judge, we accept the submission that she fell into error in prohibiting Nzekwu from giving evidence that he had been contacted by officers from the NCA. He was entitled to say, as part of his defence, that he was not involved in a conspiracy to import cocaine and that he would not do such a thing when he knew that the police were aware of him and of his business dealing with encrypted communications devices.[44]However, although we accept that submission, we are satisfied that Nzekwu was not entitled to disclosure of anything more than the very limited facts which have now been disclosed. Thus, the omission has been supplied. Nothing else fell to be disclosed.[45]The question then arises whether the judge's prohibition on Nzekwu giving that part of his intended evidence renders his conviction unsafe. We have no doubt that it does not. The contacts between the NCA and Nzekwu in 2016 were long before the 2020 plan to import cocaine, and were made because the NCA were aware of the nature of his business. The 2020 contacts came after the plan to import cocaine had been made and progressed to an advanced stage, and after the cocaine had initially been intended to arrive in this country. The fact that the NCA were aware of the nature of his business, and viewed him as a person who might be able to give them the benefit of his knowledge of encrypted technology and devices, does not indicate that they had any knowledge of his communications with the other accused. Those communications were, after all, made with an encrypted device which (as we have said) had been believed to be impregnable and which Nzekwu promptly ceased to use after the warning of a security breach was issued.[46]An assertion to the jury by Nzekwu that he would not have involved himself in the alleged conspiracy in 2020, because the police in 2016 knew that he was knowledgeable about encrypted devices, could therefore add very little indeed to what Nzekwu in any event said in his evidence. It would, moreover, have rendered him vulnerable to cross-examination which may well have been damaging to his case.[47]Given the strength of the evidence against him, and given that the jury must have disbelieved the evidence he gave, we cannot accept that the addition of this one point could have made any difference to the verdict.[48]We are also unable to accept ground 2. The bald comparisons made with other EncroChat handles reviewed by Dr Campbell were irrelevant and of no probative value. In deciding the real issue in this case, it would not help the jury to know that Nzekwu, whose business was in the selling of encrypted devices and associated activities, had more contacts in his address book than, for example, a criminal who had used an EncroChat device solely to deal in large consignments of drugs. Nor would it assist them to know that images often found on devices used by such drug dealers were not found in the data relating to Nzekwu, who was accused of involvement in one conspiracy over a comparatively short period of time. Nzekwu had support for his case from those agreed facts which did go before the jury. The judge was correct to rule that the excluded passages were irrelevant and inadmissible.[49]Nor are we persuaded by ground 3. When identifying the issue in the case, the judge clearly had in mind the need for the prosecution to prove that Nzekwu was a party to an agreement relating to cocaine, rather than anything else. Her later directions of law to the jury spelled that out very clearly, in terms which are not criticised. It is unrealistic to suggest that the judge's use of a somewhat shorthand expression in her ruling indicates that she had overlooked that element of the offence. The judge was plainly correct in her ruling that the line 109 message did not stand alone and that there were other features of the evidence which supported the inference of the requisite knowledge. We would add that, in considering those features, the jury were entitled to take into account two matters: the coincidence of price, to which Miss Robinson has referred; and the inherent implausibility of those who undoubtedly were engaged in arranging an importation of cocaine somehow bringing into their dealings an innocent businessman who was trying to finance a diamond purchase.[50]The appeal against conviction by Nzekwu therefore fails and is dismissed.

The appeals against sentence

[51]Nzekwu, now aged 53, had no previous convictions.[52]Mohammed, now aged 36, had been sentenced on 19 occasions for a total of 53 offences. He had previous convictions for possession of controlled drugs and for drug trafficking offences in 2005 and 2008, which rendered him liable to a minimum sentence of seven years' imprisonment, pursuant to section 313 of the Sentencing Code. On 13 April 2015, he was sentenced to ten years' imprisonment for causing death by dangerous driving. That sentence was not due to expire until November 2024. Mohammed was on licence from that sentence at the time of his participation in this conspiracy.[53]At the sentencing hearing no pre-sentence reports were considered necessary, and we are satisfied that they are not necessary now.

The sentencing remarks

[54]The judge recorded that in a trial which had lasted several weeks, she had heard evidence which revealed the true extent of the conspiracy and the individual criminality of those involved. She observed that the overall conspiracy was plainly very well organised and that the high level of purity of the drugs showed that those involved were very close to the original source. The conspirators had expected huge financial rewards if the importation had been successful.[55]The judge referred to the Sentencing Council's definitive guideline for the substantive offence of fraudulent breach of the prohibition on importing controlled drugs. She placed Mohammed into category 1 "leading role", for which the guideline starting point is 14 years' custody, with a range from 12 to 16 years. The judge said that the offences were significantly aggravated by Mohammed's previous convictions, including the fact that this was his third drug trafficking offence, albeit that the earlier matters were some time ago. In order, she said, to avoid double counting, she did not treat the fact that the offence had been committed whilst on licence as a separate aggravating feature. She indicated that the sentence she proposed to impose would run from the day of sentencing, but that she did not feel it appropriate to reduce the sentence further to take account of time which Mohammed had spent in custody in respect of other matters.[56]The judge took account of the matters of mitigation which had been placed before her. She concluded that the least sentence which would be appropriate before reduction for a guilty plea was 15 years' imprisonment. She reduced that by ten per cent for the late guilty plea and so imposed the sentence of 13 years six months' imprisonment.[57]The judge acknowledged that Nzekwu's share in the planned importation was one kilogram of cocaine, but she said that he was "clearly aware that your share was to be part of a larger consignment" imported from Amsterdam by his friend Gill and by Mohammed. For that reason, the judge said, an upward adjustment from the starting point was appropriate.[58]As to Nzekwu's role and culpability, the judge said that she did not regard him as a mere purchaser. He had taken part in a sophisticated conspiracy. He plainly had substantial links to Gill in particular and he was sufficiently trusted to come in on the deal, together with Gill and Mohammed. He had liaised with them about arrangements and had invested £28,500 of his own funds in the expectation of financial advantage. It was obvious, said the judge, that Nzekwu had an awareness and understanding of the scale of the operation. She regarded the use of the EncroChat devices and the sophisticated banking arrangements as a significant aggravating feature, because he had not merely used the EncroChat device, but he had also supplied the device used by Gill.[59]The judge accordingly placed Nzekwu into category 2 "significant role", with a starting point of eight years' imprisonment and a range from six years six months to ten years.[60]The judge identified the aggravating features to which we have referred and the mitigating features. Nzekwu was of previous good character, and the positive side of his character was attested to by a number of witnesses who had supplied references. She took into account that it would be his first experience of custody and would not be easy for him. She concluded that in all the circumstances the least sentence she could impose was that of seven years six months' imprisonment.

Mohammed's grounds of appeal against sentence

[61]Mohammed submits that his sentence was manifestly excessive. The starting point of 15 years before the guilty plea was too high and the judge failed properly to apply the principle of totality.[62]Mohammed's first ground of appeal relies on the absence of clear evidence that any cocaine was in fact imported and by the absence, as he submits, of some of the features of more sophisticated importations. Mr Schofield, on his behalf, submits that the previous drug trafficking convictions were some time ago and should have had little effect when the sentence would inevitably be well in excess of the seven year statutory minimum. Moreover, adds Mr Schofield, the judge should have been given pause for thought by the indication in the guideline that there is evidence that Asian offenders receive longer sentences than their white counterparts for offences of this nature. Mr Schofield suggests that the judge should have moved the starting point downwards, before then balancing aggravating and mitigating factors.[63]The second ground relies on a chronology helpfully prepared by Mr Schofield which shows that Mohammed has spent a very large part of the last decade in custody. Having been released on licence from the sentence of ten years' imprisonment to which we have referred, he had committed the present offence; he had then been sentenced to 15 weeks' imprisonment for some unrelated offences; and had then been recalled from his licence. Whilst still subject to that recall, he had received a further prison sentence for an offence committed whilst in prison. He had been kept in custody, because of his recall, after the date on which otherwise he would have been released from that sentence.[64]Mr Schofield notes that the first magistrates' court hearing in relation to Mohammed's case of drugs conspiracy was in December 2021, but the case was not listed for trial until June 2023, when the guilty plea was entered.[65]Relying on the decision of this court in R v Kerrigan [2014] EWCA Crim 2348, Mr Schofield submits that the judge should have exercised her discretion to make a downwards adjustment to reflect the period of some 19 months when Mohammed had been in custody on the basis of a recall solely attributable to this offence.

Nzekwu's grounds of appeal against sentence

[66]Nzekwu advances four grounds of appeal in support of his overall argument that the sentence was manifestly excessive:(1) The judge took too high a starting point, wrongly aggravating it by having regard to the overall weight of the importation and wrongly treating Nzekwu as more than a mere customer;(2) The judge erred in aggravating the sentence more than was appropriate for the use of EncroChat devices;(3) The judge made insufficient allowance for Nzekwu's positive good character, which Mr Forte describes as "exemplary"'; and(4) The judge made little, if any, allowance for the lengthy delay between the offence and the trial.[67]It is submitted that, as a mere customer buying one kilogram of cocaine, it was entirely wrong to increase Nzekwu's sentence because others were arranging to import a larger quantity. The judge should accordingly have moved down the category range. Mr Forte submits that the use of some form of encrypted communication and some means of transferring funds, without attracting attention, are commonplace features of this kind of offence and should not have resulted in any significant increase.[68]Mr Forte further submits that the evidence contained in the testimonials should have caused the judge to make a substantially greater reduction than she appeared to have done for Nzekwu's good character, with a further reduction because of the long delay which was not Nzekwu's fault.[69]For all those reasons, submits Mr Forte, a final sentence below the category range was appropriate.

Analysis: the appeals against sentence

[70]In our view, the judge's approach cannot be faulted in either case. No challenge is or could be made to her categorisation of the offences when considering the guideline applicable to a substantive offence. In Mohammed's case, we agree that the judge must have moved upwards from the guideline starting point to reflect the aggravating features, before taking account of the mitigation. However, the aggravating factors were significant and the mitigating factors very limited. Appropriate balancing of them would inevitably result in a significant upwards movement from the starting point.[71]The Sentencing Council's definitive Totality guideline indicates that where a determinate sentence is to be passed on an offender who is serving an existing determinate sentence and who has been recalled from licence, the new sentence should start on the day it is imposed. The guideline goes on to state that if the new offence was committed whilst on licence, the sentence for the new offence should take that into account as an aggravating feature.[72]In Kerrigan, this court dismissed appeals by two appellants who had argued that their sentences should have been reduced to reflect periods when they had been in prison subject to recall. It may be noted that those appellants had been remanded in custody for their new offences, whereas Mohammed was on bail for the conspiracy offence whist serving his earlier sentence. The court held that there was no automatic entitlement to such a reduction. However, a sentencer retained a discretion to do justice to the particular fact of the case – for example, in a case of excessive delay – and may therefore reduce an otherwise appropriate sentence accordingly: see paragraph 40 (viii) of the judgment.[73]In the present case, the sentence took effect when imposed, thus overlapping by many months with the period when Mohammed was, in any event, liable to be serving his earlier sentence. The fact that he did not make his first appearance until December 2021 was unfortunate, as was the fact that the trial did not take place until June 2023. But those were not excessive delays in the context of the difficulties faced by the courts at that time. Mohammed must have known of the likely delay when he maintained his not guilty plea until the start of his trial.[74]The judge properly considered all the relevant circumstances of the case. It was open to her to make some reduction, if she wished, because of the period when Mohammed had been in custody subject to recall. But, in our view, she was entitled in the exercise of her discretion to decline to do so.[75]The sentence of 13 years six months' imprisonment was a stiff one, but we are unable to say that it was manifestly excessive.[76]Turning to Nzekwu, the judge was correct in her assessment of his role and culpability. Although buying one kilogram of cocaine for himself, he was, on the jury's verdict, knowingly involved in a greater criminality. As was observed by McGowan J in the course of submissions, Nzekwu commissioned part of an importation by others whom he knew were engaged in smuggling Class A drugs. An upwards adjustment to the starting point was therefore merited. The judge rightly took into account the other aggravating features which she mentioned. It is, in our view, difficult to argue that the use of encrypted devices was insignificant when it was Nzekwu who had supplied at least one of his co-conspirators with an EncroChat device.[77]The judge then gave effect to the mitigation by reducing the sentence to one which was six moths below the guideline starting point. Nzekwu was not entitled to any greater reduction than he received to reflect his previous good character, and we can see no basis on which the judge's decision can be criticised.[78]In our view, the sentence of seven years six months' imprisonment cannot be said to be excessive, still less manifestly excessive.

Conclusion

[79]For those reasons we dismiss Nzekwu's appeal against conviction and we dismiss both appeals against sentence.[80]Miss Robinson, Mr Schofield, Mr Forte, may we thank you all for your assistance with this case. Your submissions have been admirably concise and focused. _____________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________