R v Kazim Ali Khan and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 26 April 2013 |
| Neutral Citation | [2013] EWCA Crim 800 |
| Docket Number | No. 2012/2135/A3, 2012/02474/A3, 2012/02466/A3 & 2012/02468/A3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 April 2013 |
[2013] EWCA Crim 800
Lord Justice Treacy
Mr Justice Burnett
and
THE RECORDER OF LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
No. 2012/2135/A3, 2012/02474/A3, 2012/02466/A3 & 2012/02468/A3
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
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
(As approved)
Friday 26 April 2013
For convenience, and without intending disrespect, we shall refer to the appellants respectively as Umar, Arfan, Ahsan and Kazim.
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.
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.
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.
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.
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.
Many individuals were involved in supplying the drugs. Some of them were children under the age of 16.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
Next we observe that there is a substantive offence of being concerned in the...
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