England and Wales Court of Appeal (Criminal Division) Decisions

Woolwich Crown Court

Belmarsh Road

London

Wednesday 7th May 1997

B E F O R E :

LORD JUSTICE STUART SMITH

MR JUSTICE FORBES

and

MR JUSTICE EADY

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R E G I N A

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DERVIS SEHITOGLU and MUSTAFA OZAKAN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR S BATTEN QC appeared on behalf of the Appellant Sehitoglu

MR J DEIN appeared on behalf of the Appellant Ozakan

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Wednesday 7th May 1997

JUDGMENT

MR JUSTICE FORBES: On 20th August 1996 in the Crown Court at Wood Green, on an indictment containing five counts, these appellants each pleaded guilty to count 1, which charged them with conspiracy to supply class A controlled drugs, namely heroin. Count 2, which charged them with possession of a firearm with intent to endanger life, count 3, which charged them with possession of ammunition with intent to endanger life, count 4, which charged them with possession of a firearm with intent to cause fear of violence and count 5, which charged them with possession of ammunition with intent to cause fear of violence, were all left on the file on the usual terms.

On 11th October 1996 the appellants were sentenced as follows. The appellant Sehitoglu was sentenced to fifteen years' imprisonment on count 1. An order was made against him under section 52(1) of the Firearms Act 1968 for the forfeiture and destruction of the firearms and ammunition. A further order was made under section 27 of the Misuse of Drugs Act 1971 for forfeiture and destruction of the drugs. An order was also made against him under section 27 of the Misuse of Drugs Act 1971 for forfeiture of the sum of £4,693.54 cash then held at Old Ilford Police Station. Pursuant to section 67 of the Misuse of Drugs Act 1971, an order was made against him for forfeiture and disposal of a Nissan Bluebird motorcar index D383 FJD. In addition, he was recommended for deportation. In his case therefore, the total sentence was one of fifteen years' imprisonment, together with the other ancillary orders to which we have referred. The appellant Ozakan was sentenced to 25 years' imprisonment on count 1. An order was made against him under section 52(1) of the Firearms Act 1968 for forfeiture and destruction of the firearms and ammunition. In addition, an order was made under section 27 of the Misuse of Drugs Act 1971 for forfeiture and destruction of the drugs and for forfeiture of £30,656.11 cash held at Old Ilford Police Station. He was also recommended for deportation. The total sentence in his case therefore was one of 25 years' imprisonment together with the other ancillary orders.

Each appellant now appeals against sentence by leave of the single judge. A short summary of the background circumstances of this case is this. As a result of a surveillance operation known as Operation Baron, the police arrested these appellants on 2nd April 1996. Others, who were the subject of the same operation, included men known as Tan Ombasi and Ali Cicek, both of whom were arrested, but not charged on this indictment. A third person called Kuna escaped.

The appellants were taken back to a flat at 10 Burleigh Court, Tottenham N17 where the police found three holdalls containing 44 kilogrammes of heroin, which was the equivalent of 24 kilogrammes at 100 per cent purity. Found in a bag next to the drugs were three semi-automatic pistols, two silencers which fitted two of the guns and some live ammunition. Those firearms and ammunition were the subject matter of counts 2 to 5 of the indictment. In a second flat at 20A Fairbourne Road, London N17 the police found hydraulic presses and moulds for the compression of the heroin into blocks.

A more detailed account of Operation Baron, relevant to the circumstances of this case, is as follows. Police observations actually commenced on 1st April 1996 outside 28 Fairbourne Road. That particular flat had been rented by the appellant Ozakan in January 1996. He had paid a deposit of £500 in cash and a month's rent in advance, also in cash. At 7.30 pm on the evening of 1st April, Onbasi drove past the flat in a BMW motorcar and gave a signal by sounding his horn. On receiving no response he drove away. Later the same evening Onbasi and the appellant Sehitoglu were seen entering 28 Fairbourne Road. Later that evening at about 9.15 pm they left in their cars. Sehitoglu was seen to make a telephone call from a call box. He then drove to a nearby shop where he met up once more with Onbasi. Sehitoglu then returned to 51 The Avenue, Tottenham N17 where he lived. Ozakan returned to 20A Fairbourne Road with the other man Kuna.

On 2nd April 1996 the cars of Onbasi and Sehitoglu were seen outside 51 The Avenue at about 6.40 pm. At 7.50 pm Sehitoglu and Ozakan were seen in a Nissan Bluebird motorcar, index number D383 FJD, in St. Albans Road. Hereafter we will refer to this particular car as the "Nissan car". Onbasi was seen to put a holdall into the boot of the Nissan car. The appellants then drove to 10 Burleigh Court. Sehitoglu was seen carrying a holdall into the flat. He then closed the curtains in the main bedroom. 20 minutes later the appellants were seen to leave the flat empty handed. They were then seen to drive to another flat. At 9.11 that evening Ozakan entered 159 Downhills Way followed by Sehitoglu. At 9.15 pm they both left. Ozakan was seen to be carrying a heavy holdall. He put it into the boot of the Nissan car. Sehitoglu then drove away in the Nissan car, leaving Ozakan on foot. At 9.20 pm Sehitoglu parked in Lordship Lane and made a telephone call on his mobile 'phone. A Honda motorcar arrived, containing two passengers, and the two cars then drove off together. Sehitoglu was seen to park the Nissan car close to Burleigh Court and walk to the road junction where he looked up and down the road. Shortly afterwards, Ozakan arrived on foot and was seen taking the holdall from the boot of the Nissan car. He also took a green plastic bag from the car and the two appellants then walked to Burleigh Court. At 10.11 that evening, both appellants left the flat and were arrested as they were about to get into the Nissan car. Whilst the officers were on their way to search 20A Fairbourne Road, they saw Kuna and Onbasi in the Honda motorcar which was then stopped and searched. However, no drugs were found in the Honda and Kuna and Onbasi were allowed to leave the scene. They were later seen to arrive at 20A Fairbourne Road. They arrived at about 2.10 am in the early hours of the morning of 3rd April 1996. By that time the police were searching the premises. Kuna and Onbasi were seen to make off when they observed the police at the upstairs window of the flat.

Just before his arrest, the appellant Sehitoglu had been seen placing a carrier bag in the back of the Nissan car. When the police searched the Nissan car, a plastic bag was found on the floor of the driver's side of the motorcar containing 7.91 grammes of heroin. Sehitoglu was searched and had £1,100-odd in cash upon him. He said the money had come from his work, although he did not have a job at the time. He was also found to have a mobile 'phone and keys to 20A Fairbourne Road. When he was shown the drugs he said that the man in the Honda car, Kuna, had asked him to carry them. When arrested, Ozakan denied any knowledge of the drugs and said that he had knocked at a friend's door but had not gone in. He said he lived at 857 Tottenham High Road. However, a mobile 'phone, a tenancy agreement for 10 Burleigh Court, a gas bill for 20A Fairbourne Road and a mobile 'phone bill were all found in his jacket when searched. In another jacket in a wardrobe the police found £1,680 in cash. From behind the bath panel at 10 Burleigh Court the sum of £28,290 cash was recovered by the police during their search. When shown the drugs in the flat Ozakan laughed and denied any knowledge of them stating that he would have "no problem." He laughed when asked to explain that comment. He was then arrested.

Sehitoglu's home at 51 The Avenue was searched by the police. £3,500 was found in cash under the cushions on the sofa. There was correspondence which showed transfers of money abroad. A total of £10,250 had been transferred in the preceding 14 months. The police also found a card showing calculations consistent with a large scale drugs operation. Sehitoglu had telephone numbers of his co-accused and other people. The police also found heroin at the home of Cicek at 19 Darwen Way. That heroin was similar in colour and purity to the heroin found at 10 Burleigh Court and appeared to be from the same consignment. Both sets of packaging were imprinted with similar marks.

In interview, the appellant Sehitoglu said he lived at 51 The Avenue and owned the Nissan car. He said that the money found on him was a gift from his girlfriend's family. He admitted that he knew the appellant Ozakan in Cyprus. He also admitted he owned a mobile 'phone but could not say if he had paid any bills for it. He said that he had been helping Ozakan move house and did not know what was in the bags because they were closed. In a second interview he denied that the heroin found in the car was his. In a third interview he denied he had anything to do with the heroin and said that the £3,500 were savings.

In passing sentence the learned judge accepted and took account of the pleas of guilty to the offences on count 1. He observed that the offence on count 1 was a serious offence and pointed out that on the available evidence the convictions of each appellant would have been virtually inevitable. However, he noted that by their early pleas of guilty, these appellants had saved the court and police much time and expense. The sentencing judge also took account of the appellants' lack of any previous convictions. He rightly described that matter as being of some relevance but, having regard to the scale of the offences involved, not a great deal of relevance. The judge also correctly stated that the drugs involved were an enormous quantity and, rightly in our view, put the appellants' role as close to the top, although not exactly at the top of the operation. As we have already observed, the equivalent weight of the drugs at 100 per cent purity would have been 24 kilogrammes. That gave them a value of some £7 million to £8 million pounds. The judge rightly observed that the profits from such drug trafficking were enormous and that the sentence had to reflect the gravity of the matter. He also pointed out that, in arriving at the appropriate sentence, he took no account of the guns, silencers and ammunition found at Burleigh Court.

So far as concerned the appellant Sehitoglu, the judge made reference to his good character, his guilty plea and, most importantly, the assistance which Sehitoglu had given to the police. The judge went on to state that, having regard to that assistance, he felt able to reduce his sentence to fifteen years from the sentence of 25 years, which it would otherwise have been.

The appellant Ozakan is aged 28. He lived in a flat in London and paid £150 per week rent for it. He was a dress presser and had no previous convictions recorded against him.

Sehitoglu is aged 27. He lived with a girlfriend in a rented flat in London and was in receipt of income support. He also has no previous convictions recorded against him.

On behalf of both appellants it has been submitted that the sentences passed were manifestly excessive, following the early pleas of guilty and having regard to the roles played by the appellants, notwithstanding the enormous quantities of drugs involved. In the case of Sehitoglu, it was also submitted that insufficient credit had been given for the substantial and significant assistance provided by that appellant to the police in their investigations into this and other related matters.

It is clear from the guideline case of Aranguren [1994] 99 Cr.App.R (S) 347 that imprisonment for 14 years and upwards is the appropriate sentence in importation cases involving five kilogrammes or more of heroin or cocaine at 100 per cent purity. This case involved the equivalent of 24 kilogrammes of heroin of 100 per cent purity. It is obvious, therefore, that it called for sentences significantly in excess of 14 years' imprisonment. However, having regard to the pleas of guilty, the roles played by the appellants and, for what they were worth, the previous good characters of these appellants, we have come to the conclusion that the sentences passed were too long.

In our judgment, in the case of Ozakan the appropriate sentence following a fully contested trial and conviction would have been in the region of 24 years' imprisonment. A sentence of such length would have properly reflected the gravity of this offence which, having regard to the quantity of drugs involved, is one which clearly falls into the highest category of drug trafficking offences, although involving somebody not right at the top of the conspiracy in question. In order to give appropriate credit for a plea of guilty in his case and taking into account the other surrounding mitigating circumstances relating to his personal circumstances, we have come to the conclusion that the appropriate sentence would have been one of 18 years' imprisonment. That sentence gives appropriate credit for the plea of guilty, the importance of which must not be underestimated in a case such as the present because we accept that much time and expense would have been involved if this matter had been a contested trial.

It follows from what we have said in relation to the sentence passed on the appellant Ozakan, that the starting point which the judge appears to have selected for the sentence which he passed upon the appellant Sehitoglu was too high. On behalf of the appellant Sehitoglu, Mr Batten QC has also submitted that insufficient credit was given for the information and assistance which has been given and which will continue to be given to the police by this particular appellant. Sehitoglu has given information with regard to a linked murder case and has given evidence in support of the committal proceedings relating to that murder case. Without that information the police would not have been able to institute or conduct those particular proceedings. The evidence and the information which he has provided and revealed are crucial to the investigation and prosecution of that matter. Furthermore, Sehitoglu has given information and assistance with regard to the prosecution of other members of this significant drugs conspiracy. He will give evidence about that in due course. His evidence in both sets of proceedings are rightly regarded as very significant. Indeed, it is no exaggeration to describe his evidence in both sets of proceedings as the lynch pin of each of the two prosecutions.

Furthermore, we have been provided with information which makes it quite clear that this appellant is very seriously at risk himself, as are his family, as the result of the information which he has given, the assistance which he has given and the information, assistance and evidence which he will give in the future. It is important to note that we have been told and we accept that the police are satisfied that he has given a full account of these various matters and, furthermore, that his account and evidence is, in the view of the police, both true and accurate.

In passing sentence, the judge rightly acknowledged that there was a need to give a suitable discount to reflect the significant assistance and information which Sehitoglu has given to the police in this case. In doing so, the judge was following a well established practice. Mr Batten referred to the case of King (1985) Cr.App.R (S) 227 which deals, inter alia, with the appropriate approach to be taken in such a situation. In the course of giving the judgment of the court, Lord Lane said this:

"It is, of course, impossible to lay down any hard and fast rule as to the amount by which the sentence upon a large scale informer should be reduced by reason of the assistance which he gives to the police. It scarcely needs stating, and indeed this is the way that Mr Pollard approached the problem, that the court will first turn to the offences which the informer has admitted to assess their gravity and their number. That should enable the court to arrive at what might be called the starting figure. For instance, if, as so often is the case, the offences are robberies and have involved the carrying of firearms or their use, the use of disguises, the making of detailed plans, or if they have involved attacks upon security guards or the like, the court will apply the guidelines laid down in well-known case of Turner [reference given] and will be able to arrive at an approximate figure, sometimes in the region of 18 years' imprisonment or more. On the other hand, the starting figure in the cases of multiple burglaries where no violence has been used will usually be less. The figure there will then, once again, depend upon the number of cases involved and whether the property attacked was private dwelling-houses or business premises, and no doubt other features as well.

One then has to turn to the amount by which that starting figure should be reduced. That again will depend upon a number of variable features. The quality and quantity of the material disclosed by the informer is one of the things to be considered, as well as its accuracy and the willingness or otherwise of the informer to confront other criminals and to give evidence against them in due course if required in court. Another aspect to consider is the degree which he has put himself and his family at risk by reason of the information he has given, in other words the risk of reprisal. No doubt there will be other matters as well.

The reasoning behind this practice is expediency, as this court has pointed out on a number of cases, including the case of Sinfield [reference given]. One of the most effective weapons in the hands of the detective is the informer. Once the identity of a suspect can be established, even if he does not confess, it will often be possible to obtain scientific or other evidence to connect the suspect with the crime so as to corroborate the informer. It is to the advantage of law-abiding citizens that criminals should be encouraged to inform upon their criminal colleagues. They know that if they do so they are likely to be the subject of unwelcome attention, to say the least, for their rest of their lives. They know that their days of living by crime are probably at an end. Consequently, an expectation of some substantial mitigation of what would otherwise be the proper sentence is required in order to produce the desired result, namely the information. The amount of that mitigation, it seems to us, will vary, as Mr Pollard submitted to us, from about one half to two thirds reduction according to the circumstances as outlined above."

We are satisfied, from the information provided to us, that the information, evidence and assistance given and to be given by the appellant Sehitoglu, coupled with the level of risk to which he and his family will hereafter be exposed, marks this case as one where the maximum possible reduction should be made. We wish to stress that we regard the assistance and information given and to be given by this particular appellant as being demonstrably of the greatest possible significance, for the reasons we have already endeavoured to explain.

On behalf of Sehitoglu, Mr Batten submitted that where it is appropriate for the court to make a reduction in the sentence which would otherwise be passed on a defendant, because of the information and assistance which he has provided to the authorities, the starting figure should be established by deciding what would have been the appropriate sentence to pass, after having taken into account all the other mitigation in the case, including any plea of guilty.

We are not persuaded that that is the correct approach, nor is it the approach contemplated in the passages from Lord Lane's judgment in the case of King, to which we have referred above. Invariably, in such cases, the offence or offences are admitted and the defendant has pleaded guilty. In our judgment, the starting figure should be established by deciding what would have been the appropriate sentence if the matter had been contested. From a starting figure which he has determined in that way, the judge should then make an appropriate reduction which adequately reflects the nature and importance of the information and assistance actually given. In our judgment, that is the correct approach to be followed in such cases and is the approach contemplated in the judgment of Lord Lane in King above.

In this particular case, for the reasons we have already indicated, we are satisfied that, had the matter been contested, a sentence in the region of 24 years would have been appropriate. In our opinion, the assistance and information given by the appellant Sehitoglu is such that he is somebody to whom maximum credit should be given for that assistance. Accordingly, we are satisfied that the appropriate reduction in sentence would have been two-thirds and that, therefore, the appropriate sentence in his case should have been one of eight years' imprisonment. Accordingly, the sentences of imprisonment which were passed on Ozakan and Sehitoglu will be quashed. Sentences of 18 years and eight years will be substituted respectively. To that extent and for those reasons these appeals against sentence are allowed.