Yusuf & Ors, R. v

Factual and Procedural Background

The three appellants were involved in an organised criminal gang responsible for the purchase and distribution of approximately 987 kilograms of cocaine, as well as the transfer of a fully automatic firearm and live ammunition. The criminal activity was uncovered following French law enforcement's access to the EncroChat encrypted phone network in June 2020. The appellants were charged with conspiracy to supply Class A drugs, conspiracy to sell or transfer a prohibited weapon, and conspiracy to sell or transfer ammunition under relevant sections of the Criminal Law Act 1977, the Misuse of Drugs Act 1971, and the Firearms Act 1968.

One appellant received additional sentences for possession of a controlled drug with intent to supply and separate fraud offences, which are not part of this appeal. All appellants pleaded guilty at various stages, and were sentenced to lengthy prison terms ranging from 18 years and ten months to 23 years and seven months. The offences took place between January and June 2020, with the appellants using the EncroChat network and a specially modified vehicle to facilitate drug trafficking. The firearm and ammunition were transported by one appellant but seized by police before reaching the intended recipient.

The appellants appealed primarily on grounds relating to the unlawfulness and excessiveness of sentences for conspiracy to sell or transfer ammunition, as well as other sentencing issues. Leave to appeal was granted on the ammunition sentence issue for all appellants, and on certain grounds for two appellants. The court considered the detailed sentencing remarks of the trial judge, who had carefully assessed the roles, culpability, harm, and mitigation for each appellant.

Legal Issues Presented

1. Whether the sentences for conspiracy to sell or transfer ammunition exceeded the maximum lawful sentence under the Firearms Act 1968.
2. Whether the starting points and overall sentences for the drugs conspiracy were manifestly excessive, particularly in relation to the roles and culpability of each appellant.
3. Whether the categorisation of harm and culpability for the firearms offence was correct.
4. Whether appropriate credit for guilty pleas and personal mitigation was given.
5. Whether the principle of totality was properly applied in sentencing.

Arguments of the Parties

Appellant Khan's Arguments

• The starting point of 25 years and six months for the drugs conspiracy was manifestly excessive.
• The firearms and ammunition offence should have been categorised as a category 3B case, reflecting a lesser level of harm and culpability.
• He should have received 25% credit for his guilty plea rather than 20%.
• Insufficient credit was given for personal mitigation.

Appellant Musa-Hamid's Arguments

• He should have been sentenced as having a lesser role rather than a significant role in the drugs conspiracy.
• The starting point of 16 years for the drugs offences was too high.
• The judge failed to give sufficient regard to duress as mitigation.
• The culpability for the firearms offence should have been lower, and harm categorised as category 3 rather than category 2.
• The starting point for the firearms offence was too high.
• The firearms sentence was insufficiently reduced to reflect the principle of totality.

Appellant Yusuf's Arguments

• The starting point for the conspiracy to supply drugs was too high.
• Inappropriate credit was given for plea.
• The harm categorisation for the firearms offence was incorrect.
• The sentencing failed to properly reflect the principle of totality.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Plaku [2021] EWCA Crim 568	Clarification of credit for guilty pleas and distinction between types of delay in pleading guilty.	The court relied on this precedent to affirm the sentencing judge's decision to grant 20% credit rather than 25%, distinguishing cases where defendants delay guilty pleas to assess evidence strength.

Court's Reasoning and Analysis

The court first addressed the unlawfulness of the sentences for conspiracy to sell or transfer ammunition, noting that under Schedule 6 to the Firearms Act 1968, the maximum sentence is five years unless the offence is aggravated, which was not the case. The sentences imposed exceeded this maximum, and the prosecution conceded unlawfulness. However, since these sentences ran concurrently with the firearms offence sentences, the total sentences were unaffected.

Regarding Musa-Hamid, the court found no error in the trial judge's assessment of his role as significant rather than lesser, rejecting duress as a mitigating factor of weight. The court held that the sentence before mitigation was not excessive given the scale and gravity of the offending. The judge's categorisation of culpability as medium, and harm as category 2, was upheld, as was the starting point for the firearms offence sentence. The court also found the reduction for totality appropriate.

For Khan, the court held that the starting sentence for the drugs conspiracy was not manifestly excessive given the large quantity of cocaine involved and his leading role. The court rejected the categorisation of the firearms offence as category 3B, affirming the judge's reasoning that Khan was aware the firearm would be used for serious criminal purposes. The harm was correctly categorised as category 2. The court also rejected the submission for 25% credit for plea, endorsing the judge's explanation distinguishing between types of delay in pleading guilty. Finally, the court found no basis to increase the reduction for personal mitigation beyond that already granted.

Overall, the court found the sentencing judge's remarks meticulous and well-reasoned, allowing the appeal only to the extent necessary to correct the unlawful sentences for conspiracy to sell or transfer ammunition by substituting lawful sentences of five years imprisonment for each appellant.

Holding and Implications

The court ALLOWED THE APPEAL solely to the extent of quashing the unlawful sentences for conspiracy to sell or transfer ammunition and substituting lawful sentences of five years' imprisonment for each appellant on that count.

The overall sentences for each appellant remain unchanged as the unlawful ammunition sentences ran concurrently with the firearms offence sentences. No broader precedent or change in sentencing approach was established. The decision corrects the sentencing error without affecting the substantial sentences imposed for the drugs conspiracy and firearms offences.