B e f o r e :
MR JUSTICE BURNETT
THE RECORDER OF LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
|R E G I N A|
|- v -|
|KAZIM ALI KHAN|
|MOHAMMED ARFAN KHAN|
|MOHAMMED AHSAN KHAN|
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
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
Crown Copyright ©
Friday 26 April 2013
LORD JUSTICE TREACY:
"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.
"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."
"It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations."
"The categories do not provide some kind of straightjacket into which every case must be squeezed. Few offences and few offenders will match exactly the categories provided. One offence or one offender may straddle a number of categories. There may be more than one offence involved in which the offender has played different roles. More than one drug may be involved. .... The judge must do his or her best to reach a fair assessment of the overall offending, namely culpability and harm, before proceeding to the next stage (step 2)."
"An exception has been created for .... street dealers.... For these offenders the quantity of drug recovered is less representative of the harm caused because the nature of the activity involved means that only small amounts of drugs can be carried by the offender. Therefore, for the purpose of assessing harm at step 1 .... street dealers will always fall within category 3, irrespective of the quantity involved."
These observations are echoed at page 10 of the definitive guideline which provides:
"Where the offence is street dealing .... the quantity of the product is less indicative of the harm caused and therefore the starting point is not based on quantity."