England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 January 2010

1. LORD JUSTICE MAURICE KAY: Naseer Ahmed Zaman is aged 40. On 29 April 2008, in the Crown Court at Wolverhampton, he pleaded guilty to conspiring to import a Class A drug, cocaine; to assisting an offender; and to conspiring to import a Class A drug, heroin. They were respectively counts 1, 4 and 6 on the indictment. For those offences he was sentenced to nine years' imprisonment on count 6, six years consecutive on count 1, and two years concurrent on count 4.
2. Although he is the only appellant, we ought to mention some others who were involved in the same case. On 3 July 2008, a man called Mahboob was convicted of a conspiracy to be concerned in the supply of heroin, for which he received 15-years' imprisonment. He was acquitted of an offence of conspiracy to be concerned in the supply of heroin on a different occasion. The significance of that is that he was the offender who was the subject of the offence of assisting an offender committed by the appellant on count 4.
3. Another man, Erdogan, pleaded guilty on 20 May 2008 to count 6, conspiracy to import heroin. He was sentenced to eight years' imprisonment, to be served consecutively to a sentence already being served: a sentence of 13 years' imprisonment for conspiracy to supply heroin that had been imposed in 2002.
4. Another man, Mattu, pleaded guilty to count 1, conspiracy to import cocaine. He was sentenced to seven years' imprisonment. Finally, Gordon pleaded guilty to conspiracy to import heroin (the count 6 conspiracy) and received a sentence of eight years' imprisonment to be served consecutively to an existing sentence.
5. The matter comes before us on behalf of this appellant as an appeal against conviction in relation to count 4 only (the assisting an offender conviction) and also as an appeal against sentence with leave of the Single Judge.
6. The factual background is complex in that it arose out of an investigation into the activities of a substantial number of people in the West Midlands, and concerned drug trafficking at various levels and with various narcotic commodities. Originally there was a global conspiracy pleaded by way of an earlier indictment, which purported to cover the entire field of activity, but very sensibly this was broken down before the matter finally came before the court for disposal by way of a plea in the case of this appellant, and following the pleas of guilty and trials of others.
7. Very briefly, so far as count 1 is concerned, the appellant, Mattu, and another man who was not before the court, Cardona, agreed to import half a kilogram of cocaine at 100 per cent purity. Zaman and Mattu had travelled to Amsterdam and there was telephone evidence about their discussing the proposed importation. A delivery of cocaine was on its way from South America, but it was intercepted in Holland. This prompted a flurry of telephone calls involving Zaman, during which the failed importation was discussed.
8. Count 3 (the one in respect of which Mahboob was acquitted) arose out of a police surveillance operation on 28 September 2005 in Birmingham. Two men were arrested, Hussain and Wisniewski, in connection with the intended supply of 11.5 kilograms of cocaine. They subsequently pleaded guilty in Birmingham Crown Court. The prosecution case was that Mahboob was actively involved in that conspiracy. That is what he contested in his trial resulting in his acquittal.
9. The offence of assisting an offender in count 4 related to an allegation that Zaman had assisted Mahboob in leaving the scene in the furtherance of the conspiracy, and had then sheltered him for some time in Zaman's own home. There were telephone conversations also between Zaman and Gordon, in which Zaman had spoken about collecting Mahboob and taking him out of the area. There was some video footage of Zaman and Mahboob outside Zaman's home on the following day.
10. Count 6 (the heroin count) involved Erdogan, who, at the material time, was serving his long sentence of imprisonment following his 2002 conviction. Whilst in prison he liaised with Gordon and he with Zaman, the purpose being to facilitate contact between Zaman and another man, Durson, who was not before the court. There were telephone conversations between Erdogan and Durson prompting Durson to meet with Zaman, or his representatives, in order to supply Zaman with samples of heroin to be imported. Zaman travelled to Turkey at the beginning of September 2006. There were telephone conversations between Zaman and Gordon shortly after this trip, during which a dispute arose over the price and references were made to Erdogan. There were discussions about the importation of five kilograms of heroin of 100 per cent purity. Gordon was effectively the intermediary between Erdogan and Zaman as to the terms of the proposed heroin deal, which was ultimately abandoned because of the breakdown of negotiations over price.
11. We turn first to the appeal against conviction in relation to count 4, assisting an offender. The point raised on this appeal is a short, but interesting, one. It raises this question: where a defendant has pleaded guilty to an offence of assisting an offender, is the conviction, which is the consequence of his plea, unsafe when the principal offender is subsequently acquitted of the offence with which he was charged?
12. On behalf of the appellant it is not suggested that his plea of guilty was an equivocal plea. His case is that as a matter of law his conviction is unsafe because the person he was alleged to have assisted was not an offender at all in respect of the relevant specified offence.
13. Section 4(1) of the Criminal Law Act 1967 provides:

"Where a person has committed a relevant offence, any other person who, knowing or believing him to be guilty of the offence or of some other relevant offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence."

The first important words are: "Where a person has committed a relevant offence." The submission on behalf of the appellant is that the acquittal of Mahboob means that the threshold condition has not been satisfied.

14. There is no authority, since the enactment of the Criminal Law Act, which is determinative of this question. On behalf of the appellant, Mr Hegarty places some reliance on the case of R v Donald. However, on any view, the words of Watkins LJ in that case were obiter and, with respect, little more than thinking aloud, as far as the present circumstances are concerned.
15. We have referred counsel to Smith and Hogan, Criminal Law 12th Edition, paragraph 9.1.1.1 on page 237 where Professor Ormerod states:

"It is immaterial that O [the principal offender] has been acquitted at an earlier trial if it can be proved at D's trial that O was guilty. Even where O and D are tried together, O's acquittal should not, in principle, be conclusive if it can be proved, as against D, that O committed the offence."

16. Professor Ormerod there refers to the case of Shannon [1975] AC 717. In Shannon there is a reference to the case of R v Rowley (1948) 32 Cr App R 147, which was concerned with circumstances amounting to assisting an offender before that statutory event was enacted, when the matter was dealt with at common law under the concept of an accessory after the fact.
17. In Rowley the Court of Appeal (Criminal Division) went so far as to find that it was wrong even to accept a plea of guilty from an alleged accessory before the guilt of the alleged principal offender has been decided. However, in Shannon that decision, which, we emphasise, related to the common law and not the statutory offence, was soundly criticised. Shannon was concerned with the position where one conspirator of two is convicted, but the other is not. Here, of course, the starting point is the language of section 4, which, as Mr Dean QC points out, refers to the commission of the relevant offence by the principal offender, not his conviction.
18. It seems to us that, as in the conspiracy cases, that leaves open the possibility that the commission of the relevant offence by the principal offender may be established in the case of the assister, even though it is not established against the principal offender himself. There may be many reasons for this, for example, evidence admissible against the assister that was not admissible against the principal offender, or following the principal offender's acquittal, but before the assister's trial, the discovery of further evidence that puts the commission of the offence by the principal offender beyond doubt.
19. We return to the present case: by his unequivocal plea of guilty the appellant relieved the prosecution of the need for any further proof, as regards the appellant, that Mahboob had indeed committed the relevant offence. As a matter of obvious inference, his time with Mahboob in the aftermath of the alleged principal offence would inevitably have equipped him with knowledge over and above what the prosecution were able to adduce at Mahboob's trial.
20. Mr Hegarty submits that the plea of guilty was on a basis of belief rather than knowledge and that Mahboob's acquittal now shows that it was a mistaken belief. In our view, however, that is an incorrect analysis. By his plea the appellant conceded not that Mahboob may have committed the offence, but that he had in fact done so: the threshold condition. Whether the appellant's state of mind at the time was one of knowledge or belief is immaterial. On either basis he was guilty of the assisting offence.
21. Accordingly, we are satisfied that the short point raised by Mr Hegarty is wrong and that the conviction on count 4 is not unsafe.
22. We therefore turn to the question of sentence. The sentence on count 4 is immaterial being shorter and concurrent. The issue relates to the sentences of nine years and six years' consecutive. The appellant is now aged 40. He has a number of previous convictions, the more serious of which, and indeed the more recent of which, were an offence of violent disorder in February 1995, to which he was sentenced to 18 months' imprisonment, and firearms offences in July 2002, for which again he was sentenced to a period of 12 months' imprisonment.
23. In passing sentence the judge said in relation to the drugs offences:

"In count one, the amount of cocaine is estimated at about half a kilo at a 100 % purity. The authorities show that my starting point at that level of importation is in the region of 10 years, I see no reason to depart from that. But your basis of plea demonstrates that your involvement was somewhat less than that of Matoo. Accordingly, I shall reduce your sentence by the promised 30%, and because of the matters set out in your basis of plea, further reduce the sentence to one of six years' imprisonment.

I now turn to count six, this is altogether a more serious offence. You contemplated receiving a significant amount of heroin ... there was talk of £14,000 and £14,500 per kilo. It all points to at least 10kg of drug at 50% purity, five at a 100%. You, of course, pulled out of this agreement, simply because the price could not be agreed and for no other reason. Your culpability in relation to that offence is very high, the aggravating features of that case are that you were using contacts, who were serving prisoners, your position, in my judgment, is as serious as that of Mr Adergon.

The immense harm that is done by the importation and distribution of class A drugs, considerably outweighs, even very significant personal mitigation, which I agree, is present in your case."

24. Mr Hegarty makes essentially two submissions. The first is that a total of 15 years for these two conspiracies to import different Class A drugs suggests too high a starting point. He submits that even if count 6 had proceeded to fruition it would have produced a further five and a half kilos, which, whilst substantial, is not enormous. In support of his submission that the starting point, which, after a trial, must be taken to have been in excess of 20 years, was too high, he refers to Attorney General's Reference (Nos 117 and 118 of 2005) R v Byfield and Swaby [2007] 1 Cr App R (S) 22. We have looked at that authority with care. It involved, in all, six consignments of cocaine coming into this country from the Caribbean. The sentencing judge had sentenced each of the offenders to 16 years' imprisonment following a contested trial. Giving the judgment of this court Latham LJ said at paragraph 17:

"It seems to us that considering the combined effect of the cases [and he refers to a number of them from Aranguren on wards] we would have expected for this conspiracy a sentence in excess of 20 years' imprisonment for these reasons. Not only is the amount involved a substantial amount, that is in excess of 14 kilograms in total, but it was a persistent series of importations where there was significant planning, involving a number of couriers who were exposed to the risks to which we have referred by reason of these offenders' activities. It seems to us that those who are involved in importation to a significant degree, as these were, and as organising spirits, must expect sentences of in excess of 20 years' imprisonment."

25. Accordingly, taking into account the principle of double jeopardy, the sentences were increased to ones of 20 years.
26. It is not suggested that there is an identity of circumstance between that case and the present one. Mr Hegarty merely uses it by way of example. In the present case there were aggravating features correctly identified by the judge. Also it is significant that counts 1 and 6 relate to two different Class A drugs with different contacts and sources in two different countries. However, having regard to the amount of heroin and cocaine involved in this case, we take the view that it is a case of rather less persistence than the case in the Attorney General's reference.
27. Mr Hegarty's second point is as to what the judge accepted as exceptional personal mitigation. It is unusual. It does not relate to the appellant's position before he was taken into custody. On the contrary, it relates entirely to his conduct whilst in custody on remand prior to sentence in this case. He was on remand for a considerable period of time. It is not exceptional, or even unusual, that he has positive testimonials from two prison officers as to his being really a model prisoner whilst on remand. What is more impressive is the description of events in which he became involved in the prison whilst on remand. It is apparent from the prison's internal documents that he was a model prisoner not only in a submissive case, but that he was a positive force for good, much appreciated by the Prison Service. In short, it was his habit to act as a counsellor and mediator for other prisoners. He manifested a degree of integrity by making good the omissions of prison officers on one occasion in October 2007 when some things had been left out and not locked away as they should have been.
28. There are numerous examples of his acting with altruism. He was directly involved in assisting staff in talking a fellow inmate out of a hunger strike in November 2007, and there was a final occasion in July 2008 where he raised the alarm in the face of an observation about an attempted suicide, which, in the circumstances, was prevented.
29. We agree with the judge that there are of course limits to which even exceptional personal mitigation can take a case when one is concerned with sophisticated conspiracies for the importation of drugs. However, we do not think that the personal mitigation in this case is without any value.
30. We have come to the conclusion that the total sentence of 15-years' imprisonment was manifestly excessive in this case following the appellant's pleas of guilty. We think that it ought not to have exceeded a total of 12 years. Accordingly we shall quash the sentence of nine years and six years substituting for them sentences of seven years and five years. The sentences remain consecutive. It produces a total of 12 years to be served concurrently with the two-year sentence on count 4. The original direction as to the counting of days spent on remand remain the same. To that extent, the appeal against sentence is allowed, but as we previously said the appeal against conviction is dismissed.
31. MR DEAN QC: Can I seek clarification.
32. LORD JUSTICE MAURICE KAY: The nine goes down to seven and the six goes down to five.
33. MR DEAN QC: Thank you very much.