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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pirani, R. v [2015] EWCA Crim 690 (26 March 2015)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/690.html
Cite as: [2015] EWCA Crim 690
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
||
B e f o r e :
MRS JUSTICE COX DBE
and
THE RECORDER OF REDBRIDGE
(His Honour Judge Radford)
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
| R E G I N A | ||
| - v - | ||
| IMTIAZ PIRANI | ||
| HARVEY WILLIAM O'NEILL |
____________________
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 J C Townsend appeared on behalf of the Applicant Harvey William O'Neill
Mr D Aaronberg QC appeared on behalf of the Crown
____________________
Crown Copyright ©
- On 26th February 2014, in the Isleworth Crown Court, the applicant Harvey O'Neill (now aged 30) pleaded guilty to conspiracy to supply a Class A drug, namely cocaine. On 29th April 2014 the appellant Imtiaz Pirani (aged 33) was convicted by the jury of that same conspiracy. On 2nd May 2014 Pirani was sentenced to a term of twelve years' imprisonment. He appeals against that sentence by leave of the single judge. O'Neill was sentenced to ten and a half years' imprisonment. He renews his application for leave to appeal against sentence following refusal by the single judge.
- The relevant facts are these. The conspiracy was a plan to import cocaine from mainland Europe, storing, wholesaling and ultimately retailing cocaine to end users. It ran for an eleven month period between 31st January and 11th December 2012. There was a large number of co-accused, each of whom played his or her part, and all of whom, save Pirani, pleaded guilty to being a party to the conspiracy. There was a second conspiracy to launder the proceeds of the cocaine dealing and return it to the European suppliers, no doubt to fund further purchases of the drugs. Two other people pleaded guilty to that conspiracy.
- The prosecution case against Pirani was that he was involved at "quite a high level" within the hierarchy of conspirators. In addition to some limited surveillance evidence, the evidence against him consisted mainly of telephone evidence of his contacts with the other conspirators. He used seven different telephone numbers for this purpose. In August 2012 he was seen driving a VW Golf and interacting with the co-accused Rakesh Sharma.
- Pirani was arrested at his home address on 21st August 2013, when the police seized three mobile phones, numerous SIM cards and a wrap containing 114 milligrams of cocaine. He answered "No comment" to all questions asked in his police interview.
- The applicant O'Neill was a serving prisoner during the period of the conspiracy. He was already serving a term of eight years' imprisonment imposed for his involvement in a previous conspiracy to supply cocaine. While he was in prison he used unauthorised mobile phones and SIM cards, which enabled him to stay in contact with several of the co-conspirators, in particular Sharma, Pirani and a man called John Souza. It was difficult to know precisely when O'Neill became involved in this conspiracy, but it was certainly from 1st April 2012 onwards. From his prison cell he was in touch with a telephone number in Kosovo and drugs were coming in from Kosovo. Further, a notebook was found showing calculations in connection with arrangements he made with Sharma relating to the importation of 3 kilograms of cocaine.
- O'Neill was arrested on 5th September 2013 at the prison. He too declined to comment when interviewed. He pleaded guilty at a much later stage, on 26th February 2014.
- Pirani had no previous convictions, reprimands or warnings. He had a single caution for possession of cocaine.
- O'Neill had two previous convictions for driving offences, and the significant drugs conspiracy conviction, for which he was sentenced to eight years' imprisonment on 19th August 2011.
- In passing sentence, the judge initially described Pirani as a "lynchpin" in the conspiracy and said the evidence showed that he hid behind the veil of a legitimate business. However, after hearing submissions from his counsel, the judge said that he had changed his mind and that he no longer regarded Pirani as having a directional and organisational role. Rather, he considered him to have played a "supervisory, monitoring and constant role", and on that basis he fell to be sentenced in between categories 1 and 2 of the Drug Offences Definitive Guidelines. A little later on in his lengthy sentencing remarks the judge referred to Pirani as the lynchpin to O'Neill, and as his lifelong friend. He was able to give O'Neill information, on a day-to-day basis, as to what was going on on the outside. The judge considered that these extensive telephone communications put Pirani at the epicentre, as the telephone schedule confirmed, reporting to O'Neill and feeding some other aspects of the chain. The judge then said that Pirani was to be placed in the same sentencing bracket as Rakesh Sharma. He referred to Pirani's personal mitigation, to his loving and loyal family and his previous good character, but by his actions he had enabled the cocaine to get on to the streets and to spread death and destruction. The high purity of the drug (between 70 and 86 per cent) was an aggravating factor. The appropriate sentence was one of twelve years imprisonment.
- Sentencing O'Neill, the judge said that the only mercy that would be extended to him in the circumstances was the award of 25 per cent credit for his late plea of guilty. He had played an organisational and leading role in this conspiracy and was right at the top of the hierarchy, even though some aspects of his role could not be precisely identified. He, too, fell to be sentenced in between category 1 and category 2 of the sentencing guidelines and as having a leading role. The telephone evidence showed that he was steeped in the operation of the conspiracy and that he was absolutely central to it. The fact that he was in prison, already serving a sentence at the time, was a grave aggravating feature. His offending was also aggravated by the high purity of the cocaine. The mitigating features were his remorse, which the judge accepted was genuine, and his guilty plea. The appropriate sentence in all the circumstances was ten and a half years' imprisonment, which was ordered to run consecutively to the current term being served.
- On behalf of the appellant Pirani, Mr Godfrey QC submits that twelve years' imprisonment was manifestly excessive in all the circumstances. Addressing the facts, he points out that there were two routes for the importation of cocaine in this operation. One was via a man called Waqas Mohammed, and the other was via Mark Lehane and Rakesh Sharma, who (Sharma) was sentenced to eight years' imprisonment, having received full discount for his plea of guilty. It was accepted that Pirani was a friend of O'Neill, who bought from Lehane and Sharma and used a man called Souza to deal for him at street level. However, Pirani had, effectively, a communication role, ensuring that O'Neill was kept informed as to what was going on outside. Pirani was never seen to handle drugs, or to visit the safe house where the drugs were allegedly stored. The evidence against him, as the judge accepted, was principally the telephone contact and occasional observations. It was agreed by both prosecution and defence counsel that Pirani fell to be sentenced between categories 1 and 2 of the Drug Offences Guidelines, and the judge accepted that.
- In relation to Pirani's personal circumstances, Mr Godfrey submits that Pirani was himself a cocaine addict who had met O'Neill as a supplier. He was effectively a man of good character. At the age of 33, he was living together with his partner and their 3 year old child and he was the effective father of her two other children. He was working and he had a chemical engineering qualification. There was no evidence whatsoever that Pirani had any financial interest in the drugs, or that he had ever benefited financially from the sale of the drugs. He received only cocaine for his services. It was conceded that there was no evidence of high living and no confiscation order was sought against him. Pirani's role, as the judge appears to have accepted, was essentially a communication role. The judge was therefore wrong to describe his role as similar to that played by Sharma in this conspiracy.
- Sharma had been sentenced by a different judge on 7th June 2013. He was described as having a leading and directional role. The fact that he was an organiser was evidenced by the number of times that he was seen to visit the safe house where the drugs were stored, on a total of 57 occasions.
- The judge accepted that Pirani did not have a directional and organisational role, but despite those findings, Pirani was sentenced to the same term, namely twelve years' imprisonment, as was imposed on Sharma, who received one third discount for his plea of guilty. For these reasons, it is submitted, Pirani's sentence was manifestly excessive.
- We see some force in those submissions, although we do not accept Mr Godfrey's further submission, that Pirani's role should be regarded as a lesser role, meriting a sentence in the region of five to six years' imprisonment. The facts indicate, as Pirani's counsel accepted below, that his was a significant role, and the judge appears to have revised his opinion as to Pirani's role, to some extent. In any event the judge accepted the submission of both counsel that Pirani fell to be sentenced on the border between categories 1 and 2 of the guidelines, but he went on to impose a sentence at the top of the range for an offence within category 1.
- There were, in our judgment, no aggravating features which would merit such an increase in the otherwise appropriate sentence and we accept the submission that his sentence was excessive. Pirani was a family man of previous good character, who was himself a cocaine addict, and there was no evidence of high living or of financial benefit. For all these reasons we shall quash the term of twelve years' imprisonment imposed and substitute, in his case, a sentence of nine years' imprisonment.
- On behalf of the applicant O'Neill, Mr Townsend no longer pursues the argument as to disparity included in his grounds, namely that the judge should have distinguished O'Neill's role from that of Lehane. We need therefore say no more about it, save to observe that quite different circumstances arose in Lehane's case and disparity was, in our view, unarguable. Mr Townsend now advances two grounds of appeal: first, that the judge should have had regard to the delay in the Crown's commencement of proceedings against O'Neill; and secondly, that the sentence imposed did not adequately reflect the principle of totality.
- In relation to delay, Mr Townsend refers to the full chronology. Five of the conspirators, including Rakesh Sharma, were arrested during the day on 13th November 2012. During that same evening the applicant O'Neill was detained, searched and placed in segregation by prison staff. His cell was secured in preparation for its search the following morning. On 14th November prison officers searched the cell and discovered the mobile phones and SIM cards that ultimately linked him to the conspiracy. An application to dismiss was made on behalf of Sharma on 22nd February 2013, which was unsuccessful. On 24th April 2013 Sharma's mobile phones were the subject of forensic analysis. DC Wells found photographs of O'Neill (the applicant) on a black iPhone seized from Sharma at the time of his arrest.
- A plea and case management hearing took place on 9th May 2013 in respect of Sharma and six other conspirators. The applicant was not interviewed until 5th September 2013. By that date, 19 persons had been arrested for their involvement in the conspiracy, and 17 of them had pleaded guilty. The applicant appeared before the Uxbridge Magistrates' Court on 7th November 2013. By the time of the preliminary hearing at Isleworth Crown Court on 20th November, more than a year had elapsed since the applicant was removed from his cell. He entered his plea of guilty approximately two months later, on 26th February 2014, and a basis of plea was submitted. That was not accepted. A Newton hearing was therefore listed for 1st May 2014, but on that date the applicant abandoned aspects of his previous basis of plea and agreed to be sentenced on the basis that he had played a leading role in the conspiracy, falling somewhere between categories 1 and 2 of the guidelines.
- Mr Townsend has drawn our attention to some observations of this court, in R v Shaw and Others [2011] EWCA Crim 89, as to the need, when determining sentence, to have regard to any failure to proceed with a case with due expedition; and more recently in R v Kerrigan and Walker [2014] EWCA Crim 2348, [2015] 1 Cr App R(S) 29.
- He rightly accepts that the facts which led to the observations in those cases were very different from those in the present case. There was, however, a general observation as to the need to do justice in a case where there has been excessive delay. While Mr Townsend accepts that the sentence imposed in the present case, allowing for the 25 per cent discount, was within the sentencing guidelines, he submits that the judge failed adequately to reflect the delay of one year, for a serving prisoner who was not entitled to time spent on remand to count towards his sentence. He submits, further, that this delay had an impact upon totality, in that the sentence passed by the judge was longer than it would otherwise have been. The impact of the delay should have informed the overall totality of the sentence.
- We cannot accept these submissions. This was an extensive conspiracy, involving a lengthy investigation and a large number of defendants. The issue of delay has to be seen in that context. We also accept the submission of Mr Aaronberg QC, on behalf of the respondent, that part of the reason for the delay was O'Neill's own decisions, first to decline to comment when interviewed, and then to enter a basis of plea which was contested and required a Newton hearing to be arranged.
- We do not consider that the delay in bringing proceedings against O'Neill was excessive in all the circumstances, or that the judge was in error in failing to make specific allowance for delay in the sentence that he imposed. In any event, to the extent that the factor of delay was not expressly taken into account, this factor was in our view amply reflected in the judge's decision to give a 25 per cent discount for O'Neill's plea of guilty, notwithstanding the background and the disputed basis upon which his plea was originally entered.
- The seriousness of O'Neill's case clearly lay in the fact that he was already serving a sentence of eight years' imprisonment for conspiracy to supply cocaine; and that, from inside prison during the currency of that sentence, he then joined a further, wide-ranging conspiracy to supply cocaine. He played a leading role and fell to be sentenced between categories 1 and 2. A starting point of fourteen years would not have been manifestly excessive, and a consecutive sentence was, in our judgment, correct in principle. Joining this conspiracy, whilst already serving a prison sentence for an earlier conspiracy, was an extremely serious aggravating feature. The judge had proper regard to totality and allowed a 25 per cent discount for his plea.
- For all these reasons the term of ten and a half years' imprisonment imposed in O'Neil's case cannot be said to be manifestly excessive or wrong in principle. We therefore refuse the renewed application for leave to appeal in his case.
LORD JUSTICE JACKSON: I will ask Mrs Justice Cox to give the judgment of the court.
MRS JUSTICE COX: