England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT LUTON
HHJ N LITHMAN QC
T20170406

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/09/2018

LORD JUSTICE LEGGATT:

1. The appellant, Shahraz Khan, was convicted after a trial at Luton Crown Court of possessing with intent to supply 15 kilograms of cocaine, a class A drug. On 16 May 2018 he was sentenced for that offence to 16 years' imprisonment. He appeals against his sentence with leave of the single judge.
2. Before his arrest the appellant had been under police surveillance. He owns and runs a fast food take-away shop. On the day of his arrest he was observed leaving his shop and going to collect a bag which he brought back to his shop and put in a back room. Later, he left his shop carrying a smaller bag and was stopped by the police. The bag was searched and found to contain two blocks of cocaine wrapped in foil, each weighing approximately one kilogram. On a search of the shop premises the larger bag was found which contained 13 more one kilogram blocks of cocaine. The police also found five small wraps of cocaine which the appellant claimed was for his personal use. At his home the police found, in a jacket pocket, electronic scales with small plastic bags, a small roll of clingfilm and cash. A hunting knife was found in the appellant's van.
3. The appellant's defence at trial was that he was asked to look after the bags which contained the wrapped blocks of cocaine by someone, but did not know that they contained drugs. The jury rejected that defence and he was convicted.
4. The judge in sentencing the appellant was required to following the Definitive Guideline for Drugs Offences issued by the Sentencing Council. There was no doubt that within the guideline the offence fell in Category 1, the highest category of harm assessed by reference to the quantity of the drug concerned. The indicative quantity of cocaine required to bring a case within Category 1 is five kilograms. In this case the quantity involved was 15 kilograms, that is three times the indicative amount. The judge observed that that quantity had a value somewhere between £450,000 wholesale and well over £1 million at street level. A further aggravating factor was that the drugs contained an additional harmful substance, Tetramisole, used to control parasitic infection of animals, which would expose users to more than usual danger. The judge was plainly right to regard the level of harm as extremely high.
5. In terms of culpability, the judge took the view that the appellant had a leading role in the intended supply. Three reasons were put forward by the prosecution and accepted by the judge for taking that view. The first was that, given the value of the drugs, there was an expectation of substantial financial gain. The second was that the appellant was using his business as cover for the storage and onward distribution of cocaine. The third reason was that, as the drugs were still wrapped in waterproof packaging and appeared to have been unadulterated since importation, it could be inferred that the appellant had close links to the original source of the drugs.
6. The assessment that the appellant had a leading role is challenged on this appeal. On his behalf, Mr James points out that, although the value of the drugs was extremely high, there is no evidence to suggest that the appellant expected to receive a substantial financial gain from his involvement. The prosecution explained at the sentencing hearing that the appellant was believed to be a member of a group of approximately four people who could be expected to make between them an estimated profit of around £105,000 from the onward supply of these drugs. An equal share of that profit would therefore be around £26,000. However, while the appellant was providing storage for the drugs, there is no evidence that he was himself involved in the buying or selling of them. Mr James submits that he was unlikely in these circumstances to have received an equal share of the profit and that on any view his expected level of financial gain does not justify ascribing to him a leading role.
7. As for using his business for cover, the appellant's business was a take-away food shop which had been run by his family for many years. It is accepted that he used the shop premises as a place to hide the drugs, but it was an ordinary and genuine business and not a business that was created or operated as a front for drug dealing.
8. Lastly, while it is true that the drugs appeared still to be in the packaging in which they had been imported, Mr James submits that this does not show that the appellant himself had links with the original source of supply or of importation. His only demonstrated links were to the individual to whom he was delivering two kilograms of cocaine at the time of his arrest.
9. These submissions in our view have force and persuade us that the judge was not justified in attributing to the appellant a leading role. He should instead have sentenced the appellant on the basis that he had a significant role. On that basis, the starting point in a Category 1 case is 10 years' custody and the category range is from nine to 12 years' custody.
10. The quantity of drugs involved was a reason for increasing the sentence above the starting point and potentially above the top of the category range. But there were also mitigating factors. The appellant, who was aged 37 at the time of sentence, has only one previous criminal conviction which was for making a fraudulent statement to claim a social security benefit and not for any previous drugs offence. More importantly, he suffers from a very serious medical condition. It is a congenital blood disease known as Beta thalassaemia major. Because of this condition, he has from a very young age required regular blood transfusions to stay alive. He requires a transfusion of three units of blood approximately every three weeks. Not only is this treatment time-consuming (the transfusion of each unit of blood takes around 90 minutes), but the consequence of the regular blood transfusions is that his body is constantly ingesting large quantities of iron, which it cannot get rid of naturally. Treatments are given to try to reduce the level of iron which accumulates in his body, but these are difficult and painful and the appellant has for many years had numerous problems related to severe iron overload. These include dangerous deposits of iron in his heart and also severe iron overload in his liver, which in turn has caused hypogonadism and growth failure. That in turn has affected his fertility and before his trial he had been referred for fertility treatment to try to have a child with his wife. As a result of his offence and consequent imprisonment, that possibility has now in all likelihood been lost.
11. The appellant also has a separate kidney disorder. This is seriously problematic because the collation therapy used to treat his iron overload involves excreting the iron through the kidneys and that cannot be done if the kidneys are not functioning properly.
12. Although the judge referred in his sentencing remarks to the appellant's "demanding and debilitating medical condition", he did not in our view take adequate account of its very serious nature and of the difficulties of providing in prison the extensive ongoing treatment that he needs. Those circumstances make the impact of imprisonment on the appellant far greater than would ordinarily be the case. That is a matter which the court is fully entitled to take into account in accordance with the principles recently re-affirmed in R v Stevenson [2018] EWCA Crim 318 at paragraphs 9 to 16.
13. A recent letter from the consultant haematologist who treats the appellant has updated the court on his condition and can, in our view, properly be received in evidence under section 23 of the Criminal Appeal Act 1968. The letter explains that the appellant has been unable to tolerate the drug which was recently administered to try to clear some of his severe liver iron loading. The alternative strategies now available involve very difficult and time-consuming procedures. One possible treatment involves subcutaneous infusions for 12 hours each day for seven days a week. The other possibility involves intravenous administration of a drug 24 hours a day, seven days a week for between six and 12 months.
14. The offence which the appellant committed made a lengthy prison sentence inevitable. Releasing him from prison to undergo the treatment he needs to try to reduce his severe liver iron loading is not an option as it would be incompatible with the public interest in the punishment of crime. His treatment will therefore have to be administered in prison. Nevertheless, the appellant's medical condition and its impact in our view constitute an exceptional circumstance which justify reducing the length of his sentence significantly below that which would otherwise be called for by the seriousness of his offence. We quash the sentence imposed in the Crown Court and replace it by one of 10 years' imprisonment.