R v Raza (Wasim)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,MR JUSTICE CRANSTON,JUDGE RADFORD |
| Judgment Date | 24 June 2009 |
| Neutral Citation | [2009] EWCA Crim 1413,[2009] EWCA Crim 1040 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 June 2009 |
| Docket Number | No: 200806474/A6,No: 2008/6474/A6 |
[2009] EWCA Crim 1040
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hooper
Lord Justice Etherton
Mr Justice Cranston
No: 200806474/A6
Non-Counsel Application
: In this renewed application for leave to appeal, we received yesterday an application to adjourn for the case to be presented by counsel. We were minded to grant that adjournment, but we have decided that leave to appeal should be given. Therefore we will give a short judgment today saying why leave to appeal has been given and then the full appeal can go ahead with counsel and the prosecution should be invited to attend the hearing of the full appeal.
: This is application for an extension of time in which to renew an application for leave to appeal against sentence, an application for leave to appeal against sentence and an application for a representation order.
The background is that in October 2008 at the Crown Court at Preston the applicant was convicted after a nine day trial by a jury of counts 3, 4 and 5 on the indictment. In early November Her Honour Judge Bagley sentenced him as follows: count 3, possession of a prohibited firearm, five years' imprisonment; count 4, possession of ammunition without a firearms certificate, two years' imprisonment concurrent; and then consecutive to the sentence on count 3, on count 5, possession of a controlled drug of class A with intent to supply, eight years. So the total sentence was 13 years' imprisonment, less the 170 days spent in custody on remand.
There is no need for a lengthy outline of the facts. Essentially the police found a car key at the applicant's house and then a Mercedes van to go with it. In the van they found a significant amount of cash, a prohibited firearm and ammunition, and a large amount of cocaine. The firearm was designed as a starting pistol but had been converted so as to fire ammunition. Examination of the ammunition revealed that blank cartridges had been drilled into and 22 air pellets inserted so that a blank was converted into a bullet.
As to the cocaine, the total amount was 1181.6 grammes. The majority was made up of a compressed kilo block which had a high purity of 77 per cent. The rest of the cocaine, 130 packages, contained street level deals of cocaine of less than one gramme. One kilo of the cocaine at 75 per cent purity was equivalent to 750 grammes at 100 per cent.
In sentencing the applicant the learned judge said that the jury had drawn the clear inference from the amount and packaging of the drugs that the applicant was a drug dealer. He did not have previous convictions which were serious, and no previous conviction for firearms offences. In respect of the prohibited firearm and ammunition, the learned judge said that the law required a sentence of at least five years' imprisonment, unless there were exceptional circumstances. In her view there were no exceptional circumstances in the applicant's case.
As to the cocaine, the judge referred to the guideline cases. The starting point would be ten years but there had to be a reduction for totality. In the circumstances the sentence would be reduced to eight years. So because of the five year minimum sentence on the firearm count the total sentence was to be one of 13 years.
As to the sentence for cocaine, the argument for the applicant is that it was an isolated offence. There was nothing to suggest that the applicant was a financier, organiser or controller. In our view, however, the learned judge was entitled to take ten years at least as the starting point (see Attorney General's Reference Nos 66 to 67 of 2006, [2006] EWCA Crim 2777).
As to totality, the learned judge referred to R v Baptiste [2007] EWCA Crim 2773. There, on the principle of totality, the court reduced a drug sentence considerably where a minimum five year sentence was imposed consecutively in respect of a firearm count.
In our view, this is a matter which needs to be addressed as a matter of principle —how totality is to be applied to reduce an overall sentence where the sentencer decides that there is to be a consecutive minimum five-year sentence for a firearms offence. In particular this court needs to consider how totality impacts on the Parliamentary intention that there be a five year minimum sentence for firearms offences.
It is on that basis, as my Lord has said, that we grant leave in this case and a representation order for junior counsel only. The prosecution is to be invited to attend.
[2009] EWCA Crim 1413
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Thomas
Mr Justice Penry-Davey
His Honour Judge Radford
(Sitting as a Judge of the CACD)
No: 2008/6474/A6
Mr P Andrews appeared on behalf of the Appellant
Miss R Goode appeared on behalf of the Crown
: On 9th October 2008 in the Crown Court at Preston, the appellant was convicted by the jury who tried him of three counts on a consolidated indictment. On 6th November 2008 he was sentenced by the trial judge, Her Honour Judge Badley in respect of those three offences. On count 3 he was convicted by the jury of possessing a prohibited firearm and sentenced to five years' imprisonment. On count 4, for possessing ammunition without a firearms certificate, he received two years' imprisonment to run concurrently with the first sentence and on count 5, for possessing a controlled drug of class A (cocaine) with intent, eight years' imprisonment to run consecutively, making a total of 13 years' imprisonment. An order under section 240 of the 2003 Act was made in respect of the 170 days spent in custody on remand.
The facts of the offences can be shortly stated. Just before 9 o'clock in the morning on 22nd May 2007, police officers executed a search warrant at the appellant's home address in Blackburn. They were looking for stolen electrical goods. They found a set of vehicle keys for a Mercedes van. The appellant said he had recently owned the Mercedes but had sold it weeks ago. He appeared to the searching officers to be nervous and evasive.
A Vauxhall vehicle belonging to the appellant was parked outside his address. It too was searched by the police and a Sony Ericsson mobile phone was found inside. The appellant was unable to give a satisfactory explanation as to why he was in possession of the phone and he was then duly arrested on suspicion of theft. It is to be noted that a total of about £400 in cash was found on his person when he was searched.
The Mercedes van was soon located and the key found in the appellant's home was used to unlock it. On examination the van was found to contain a large amount of cocaine, a significant amount of cash (in excess of £1,000) and the prohibited firearm and ammunition the subject matter of the counts on the indictment to which we have made reference.
The firearm was an Ekol and Voltran Tuna 8mm handgun. It was designed to fire as a starting pistol, normally discharging blank calibre cartridges, but the blockage in the barrel had been removed and a sleeve inserted to support the ammunition. Examination of the ammunition which was found revealed that the blank cartridge had been drilled into with a.22 air pellet inserted so that the blank was converted into a bullet.
In all the total amount of cocaine found was 1,181.6 grams. Approximately 60 small wraps of cocaine similar in appearance to those found in the appellant's home were seized from the vehicle. Fingerprints of the appellant were found on the bags containing the wraps. The bulk of the cocaine that was found was in a compressed kilo block of cocaine which was found on analysis to have a high purity level of 77 per cent. Opinion evidence before the court at trial was to the effect that it was unlikely that this kilo block had been diluted since importation into the United Kingdom. The rest of it, namely 131 packages in all, contained street level deals of cocaine at less than a gram. The court heard that the street price for the cocaine was £50 a gram. The street value...
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