Case No: 2009/1479/A6, 2009/1644/A6 & 2009/2134/A6
Neutral Citation Number: [2010] EWCA Crim 504
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 5 March 2010
 
B e f o r e:
 
LORD JUSTICE STANLEY BURNTON 
MR JUSTICE COLLINS 
MR JUSTICE DAVIS 
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R E G I N A 

v 

OLUTOLA GISANRIN
HARJINDER KHAKH 
SUKHDEV KHAKH 
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Miss A Power appeared on behalf of Gisanrin
Mr J Hines appeared on behalf of Harjinder Khakh
Mr T Owen QC appeared on behalf of Sukhdev Khakh
Mr R Smart appeared on behalf of the Crown
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 J U D G M E N T 

1.	MR JUSTICE COLLINS:  The three applicants apply for leave to appeal against sentences imposed upon them at the Crown Court in Southwark for their complicity in offences of kidnapping and blackmail resulting from an attack on and abduction of Mr Inderjeet Sahans, followed by a demand for £20,000 in order to secure his release, failing which he would be, it was said, killed.  Mr Sahans was seen to have been bundled into a van, and witnesses variously described three to six men as being involved, at about 11.15 pm on 4th August 2006.  At about that time a phone call was made to a Mr Dutt, who was a friend of Mr Sahans, indicating that unless the £20,000 was paid Mr Sahans would be killed.  As a matter of fact it transpired that Mr Sahans was not the appropriate person to have been abducted.  The wrong individual had been kidnapped.  But that of course does not affect the seriousness of the matter or the effect of what happened upon the unfortunate Mr Sahans.    
2.	The police were informed and ransom money was prepared.  Undercover officers were to keep observation on and were involved in the payment.  When the money was paid over Mr Sahans was released and this was at about 9.40 in the evening of 5th August.  Thus he had been kept for something approaching a day, a total of about 22 hours.  
3.	In the course of his incarceration he had suffered a number of injuries.  Fortunately none of them were of enormous severity, although he was afraid that his jaw had been broken.  In fact fortunately that was not the case.  The injuries numbered in all some 24 separate matters.  There was bruising to his face, there were wounds to his legs which suggested that he had been stabbed with a sharp instrument ‑ small stabs but nonetheless obviously frightening and painful.  There were various other bruises and abrasions.  He also was clearly terrified by his ordeal and when it came to the question of his giving evidence he was reluctant to do so and indeed he did not in the end give evidence, so frightened was he by his ordeal and by concerns as to what might happen to him if he did give evidence against those who were responsible.
4.	The bag which had in it the ransom money also contained a covert listening device.  This enabled the police to keep in contact and chase the van which was used to take the money and also to an extent to assist in identifying the roles played by the individuals who were concerned in the offences.  
5.	The van was eventually brought to a halt.  One of the tyres had to be shot at by police who were armed and there were violent struggles in order to overcome three of the defendants who were eventually tried for the offences.
6.	In the van were, as passengers, Harjinder Khakh in the front and Olutola Gisanrin in the back.  Gisanrin in fact was pawing over the money, some of which he had taken out of the bag.  The driver was a man called Walrond.  He was one of the co‑defendants charged.  We will refer to the various sentences imposed.  He sought to appeal but his application was refused and he has not renewed it and so he is not before the court.
7.	A further co‑defendant, a man called Abraham, was involved in the release of Sahans.  He also was arrested and charged.  He also sought leave to appeal against his sentence.  Following refusal he has not renewed any application.
8.	There were four arrests initially, that is to say Gisanrin, Harjinder Khakh, Walrond and Abraham.  At that stage the applicant Sukhdev Khakh had not been identified as having had any involvement in these offences.  
9.	The first trial of the four commenced in September 2007.  All save Abraham pleaded guilty to conspiracy to blackmail but contested the charges of conspiracy to kidnap and to imprison falsely.  The trial lasted for some 39 days before His Honour Judge Loraine‑Smith, but in the end the jury failed to agree on the charges of conspiracy to kidnap and to imprison falsely.  Abraham, who had pleaded not guilty to the blackmail, was convicted of that.  It was decided that there should be a retrial.  
10.	In the course of the trial a phone number had come to light which was linked to Sukhdev Khakh and as a result of that he was arrested in February 2008 and was joined in the indictment against the others.  He pleaded not guilty when the matter came before the court eventually in November 2008.  All the others changed their pleas to guilty.  The result was that there was a need to try him and he was tried separately, not before His Honour Judge Loraine‑Smith but before Her Honour Judge Taylor who in fact had been due to carry out the retrial in November 2008.  He was convicted on 19th December 2008 and was sentenced by Her Honour Judge Taylor on 1st April 2009 ‑ that was after the others had been sentenced by His Honour Judge Loraine‑Smith.  As we understand it, it was originally proposed that Her Honour Judge Taylor should deal with them all, but as a result of representations made by counsel on behalf of one of the defendants, it was decided that His Honour Judge Loraine‑Smith would deal with the sentences.  Although it had been some time before, he clearly had some knowledge of the matters having been the judge who presided over the first trial in the autumn of 2007.
11.	The sentences imposed by His Honour Judge Loraine‑Smith on 2nd March were as follows.  Gisanrin received a sentence of imprisonment for public protection (which we will refer to as IPP) with a minimum term of five years and one‑and‑a‑half months.  That was on the conspiracy to kidnap and to imprison falsely.  He received eight years concurrent on the conspiracy to blackmail.  Harjinder Khakh was sentenced to an IPP for the conspiracy to kidnap and to imprison falsely with a minimum term of five years and seven‑and‑a‑half months.  Those minimum terms reflected a discount for pleas of a relatively small amount, about nine months in each case, having regard to the lateness of the pleas of guilty and there was also a reduction in due course of a very substantial period spent in custody, namely 938 days.  Abraham was sentenced to a determinate sentence of seven years and three months on the kidnap and false imprisonment counts, and Walrond was sentenced to 10 years and three months, again a determinate sentence, on the false imprisonment and kidnapping counts with eight years concurrent on the blackmail.  As we have indicated, they are not now before this court.
12.	Judge Loraine‑Smith of course was able to form his own view as to the relative parts played by the individual defendants.  It was the Crown's case that Harjinder Khakh was, together with his brother Sukhdev, involved in the organisation.  It transpired, and this was a matter that was accepted by Her Honour Judge Taylor, that Sukhdev was effectively the ringleader, but Harjinder was his first lieutenant, as it were.  It was also decided that Gisanrin was, if one likes to put it in terms of military analogy, the second lieutenant involved in assisting in the organisation.  The foot soldiers were Walrond and Abraham.  That was the hierarchy that was decided upon and a hierarchy which although it has been challenged by the applicants (it was at the time challenged very vociferously before the judges who had to decide on this aspect) nonetheless it is not a matter which this court is able to go behind.  It is not for this court to retry that sort of issue which depends upon the material which was before the trial judge and unless it is clear to this court that a decision of this sort is one which could not reasonably have been reached or was one which was clearly wrong, this court will not interfere.  That is particularly the case where a judge has presided over a trial and has been able to form his or her own view having heard all the evidence as to the respective culpability of the various offenders.
13.	It is perhaps unnecessary to go into any detail as to the offending.  Suffice it to say, as we hope has been clear from what has already been said, the victim was ill‑treated, was assaulted, was put in intense fear no doubt for his life and in those circumstances these were the most serious offences.   
14.	Sukhdev, as we have said, was sentenced on 1st April 2009 and the sentences imposed upon him were, for the conspiracies to kidnap and to imprison falsely, IPPs with a minimum term of five years, which reflects a ten year determinate sentence approach.  For the conspiracy to blackmail he received eight years' imprisonment concurrent.  
15.	The three applicants raise, as we have said, the question of the appropriate level of their involvement.  We have already dealt with that.  We take the view that Judge Loraine‑Smith was entitled to decide as he did what the relative role played by each was.  To be fair, counsel have not relied with any great emphasis upon the suggestion that the relative roles have been misconceived.  What is said essentially in all is that the two judges were wrong to impose IPPs.  There is an attack upon the finding of dangerousness in each case and in the alternative an attack upon the tariff that was fixed on the basis that essentially reports from prison and from other sources on all of them showed a real change of heart and are exceptionally good to a greater or lesser extent and so would justify from this court a reduction in the tariff that was otherwise thought appropriate by the learned judge.  
16.	It therefore becomes necessary to look at each of the applicant's individually.  
Harjinder Khakh 
17.	What is submitted on his behalf is that the judge erred in taking the view that he was sufficiently dangerous to justify the imposition of an IPP.  An attack is made upon the pre‑sentence report which was to an extent relied on by the learned judge in deciding that the necessary risk of serious harm which is required by section 225 of the 2003 Act was established.  The probation officer certainly took a clear view that there was indeed such a risk.  The applicant had a number of previous convictions.  Those included a robbery, but that was a long time ago when he was a juvenile.  Nonetheless, it existed.  We are told by his counsel that it amounted to a fight with another lad (he was then 15) and following that fight the applicant took the young lad's wallet ‑‑ hence he was charged with and convicted of two offences of robbery and assault.  However, he had been convicted of being involved in the importation of a kilogram of cocaine and received 10 years' imprisonment in 1997.  He was still on licence when the offences which are before this court were committed.  He did not tell the probation officer the full extent of his involvement.  Indeed, he continued to challenge that and has not accepted it since.  
18.	The learned judge in his sentencing observations referred to the probation officer's view that there was a continued high risk of harm in future offending and financial gain, unless he demonstrated that he had addressed the factors which had led to his offending, and that he did fulfil the criteria for dangerousness.  It is submitted on his behalf that the report of the probation officer is insufficiently analytical and is far too superficial and amalgamates wrongly harm by reoffending to the risk of serious harm and serious personal injury which is what matters when one is concerned with violent offences.  However, the judge clearly did not rely entirely upon the report.  He said this:
"He assesses you as fulfilling the criteria for dangerousness, and so do I.  On all I have seen and heard I have considered your past, but most particularly I have considered your part in this offence and this case as a whole, particularly when it comes to organising violent actions by others, and I am quite satisfied in your case that there is a significant risk to the public of serious personal injury being caused by your committing further specified offences." 
He went on to say that the pre‑sentence report and the applicant's attitude to the offences showed that little had changed since he tried the matter back in 2007.  He considered it necessary to pass a sentence of imprisonment for public protection.  
19.	We do not accept that there is any error to be found in the judge's approach to dangerousness, nor indeed to whether it was appropriate in the circumstances to pass a sentence of imprisonment for public protection.  The judge quite clearly considered all the relevant factors and took the view, based in part perhaps upon the probation officer's report, but in part on his own knowledge of the offender having seen him in the course of the trial back in the autumn of 2007, that he was dangerous.  
20.	Each applicant has submitted that the sentence of IPP is a sentence of last resort.  The judge ought, if satisfied of dangerousness, to have considered the possibility of an extended sentence and it is said that an IPP was unnecessary in all the circumstances.  Again, we disagree.  This is a matter that the judge has to decide in exercising his judgment as to what the appropriate sentence is.  But having regard to the serious nature of these offences, coupled with the previous record, coupled with the view formed as to whether this particular applicant had shown a change of heart, in our view the judge cannot be criticised for having decided as he did.  
21.	As far as the minimum period is concerned, he indicated that the sentence that he would have passed was 11 years and three months.  That would be 12 years with a reduction of nine months for the plea of guilty.  Again, subject to the question of disparity which we will deal with at the conclusion of this judgment, that sentence, indeed as was recognised by counsel responsible for the original notice of appeal, was not a sentence which could be challenged.  
Gisanrin 
22.	He was regarded as Khakh's second lieutenant.  He brought Abraham in to the offending.  He was in the van when the kidnapping took place and he was, as the judge assessed, at the very centre of the whole process but not a decision maker and so to that extent he fell below.  He had serious previous convictions.  In 1996 he was involved in no less than eight or nine offences involving robberies or attempted robberies.  For those he was sentenced to a total of 11 years' imprisonment ‑ in fact he received 14 years but that was reduced to 11 years on appeal.  The judge indicated that those were bank robberies in which violence had been threatened but not actually used.  They were obviously highly relevant in considering dangerousness when coupled with the offending in question.  
23.	Again in his case there is an attack upon the pre‑sentence report which carries perhaps somewhat greater weight in the sense that the judge himself decided that he did not find it a particularly helpful report.  Again the judge had a feel for the case.  The judge was entitled to form his own view and of course it was supported because the report indicated the description given of the events to which the applicant had pleaded guilty and what the applicant had told the probation officer did not accord with the reality of the situation.  
24.	There were produced in his case letters and reports which indicated that he had changed, or so it was said, while in prison.  He had of course been in prison for a very long time indeed prior to trial as a result of the previous failure to agree and it was a year before the retrial could take place.  In fact he had been in custody for some two‑and‑a‑half years before the retrial took place, so there was an opportunity for his progress in prison ‑‑ indeed the same applies to all ‑‑ to have been judged.  There was in particular a letter from the Chaplain at Wandsworth and a prison officer which indicated that the view was taken certainly by the Chaplain that he had changed.  However, the judge was not persuaded.  He took the view, and indeed this is a view which was open to him from his knowledge of the applicant, that he was perfectly capable of saying one thing to one person and behaving well in certain circumstances but not actually being shown to be reliable and he particularly relied on the failure to tell the probation officer the truth about his involvement.  The view that the learned judge took was that he was indeed dangerous.  That is a view which in our judgment he was perfectly entitled to reach and was a proper view.  He then decided that a sentence of IPP was required.  Again, that is a matter which in our view he was entitled to reach.  
25.	There has been an indication, and the same will apply as will be seen in Sukhdev's case, of improvements in prison.  If it was proper on the material before him or her for the trial judge to pass an IPP based upon dangerousness, the fact that since there have been apparent improvements as a result of undergoing courses in prison or for whatever reason, is not a reason for this court to interfere with the sentence.  The whole point of a sentence which will, one hopes, enable a defendant to undertake any necessary courses, will be to result in improvements or if, and this was to an extent the case of Harjinder, the view was taken that no courses were needed because he had improved, again that is something which will no doubt avail the individual when it comes to be considered whether he should be released on licence.  But it is not a matter that can affect the propriety of the sentence imposed at the time it was imposed.  In exceptional cases improvements have been held by this court to be properly taken into account in reducing determinate sentences.  The same principle will no doubt apply in relation to tariffs in IPPs, but normally they will not affect the correctness of the imposition of the IPP itself.  
26.	Before leaving Gisanrin, we should refer to what happened to Mr Walrond.  He was not involved in the organisation and was not present in the van when the kidnapping took place.  But he was responsible for making the demand calls and indeed he was exceedingly violent when the arrest took place.  He had substantial previous convictions:  Wounding with intent, robbery and firearms offences, more recently in December 2002, he was also on licence when he committed these offences.  The judge indicated that had he been sentenced shortly after the original trial he would have been subjected to an IPP, but he gave reasons for not taking that course when he did in fact sentence.  First, that he was the first to tender a plea of guilty; secondly, there was evidence which he accepted that he genuinely regretted the offence, as opposed to the effect it had had upon him; and thirdly, the prison reports.  We have said that prison reports are not material to apply in an appeal against an IPP but of course they are material in the trial judge's decision as to whether dangerousness is established and an IPP ought to be imposed.  It is said that it is wrong that Mr Walrond was sentenced to a determinate sentence because his role, albeit perhaps not quite as central as that of Mr Gisanrin, nonetheless showed that he clearly was a dangerous person having regard to his record and having regard to his involvement in this offence.  Whether or not Mr Walrond can be regarded as fortunate is another matter, but in our judgment there is no reason simply because Mr Walrond was not sentenced to an IPP to say that Mr Gisanrin was wrongly so sentenced.  Sukhdev Khakh 
27.	He again was sentenced to an IPP.  The judge said that he was convicted by the jury on the basis that he together with his brother Harjinder was an organiser.  That was how the case was squarely put and it was accepted by the judge that he was intimately involved in directing them and being in constant contact with those involved in the hands on aspect of the crimes at all stages.  There were a number of references produced, all of which were very good.  Mr Owen has described them as "exceptional" and indeed they have been added to by subsequent reports produced since the matter came before the judge for the purpose of sentence.  However, she took the view then that there was little indication at that time of the real remorse for involvement in the offences.  Nonetheless, there was substantial mitigation in his case produced by the reports which the judge had before her.  She in due course being aware of the sentences passed upon the others, or at least we so assume, decided upon a tariff which is equivalent to a 10 year sentence.  He had contested the matter and there was no reduction for a plea of guilty.  That is less than the 12 years that was regarded as the appropriate sentence for Harjinder.  It is said in the circumstances, most particularly by counsel on behalf of Gisanrin, that it is wrong that Sukhdev should have received a lower sentence.  The learned judge was entitled to give such weight as she considered appropriate to the reports that she had before her.  She was able to form her own judgment as to the appropriate discount in those circumstances that should be applied as against that which has been considered appropriate for the other participants in these very serious crimes.  Whether or not she was correct in the amount that she reduced his sentence by is nothing to the point.  The only question is whether that reduction means that it can be said on the others' behalf that their sentences in the circumstances could be regarded as too long.  In our view that simply cannot be said to be the case.  If it can be said that Sukhdev was more fortunate, so be it.  That was a decision reached by the judge who had to sentence him.  As we say, there was powerful mitigation in the material which was put before her.  We do not regard the discrepancy as being in any way a basis for suggesting that the other sentences were in any way wrong.   
28.	As is clear from what we have said, the sentences in fact imposed were in our view neither wrong in principle nor manifestly excessive and accordingly these applications must be refused.