Khan, R. v

Factual and Procedural Background

On 8 September 2023, in the Crown Court at The City before Judge Gurney and a jury, the Appellant, then aged 29, was convicted on two counts of possession of a Class A drug with intent to supply, specifically heroin and crack cocaine. On 11 September 2023, Judge Gurney sentenced the Appellant to 6 years and 6 months' imprisonment on each count, to run concurrently. The Appellant appealed the sentence on the basis that it was arguably manifestly excessive.

The offending occurred on 10 May 2022 when Police Officers attended Centenary Plaza Apartments on Holiday Street, The City, for an unrelated matter. Officers observed the Appellant entering and leaving the building and, based on intelligence that he was using apartments to store and package drugs, obtained a warrant to search Apartment No. 4. No one was present at the time of the search, but officers found 430 wraps of heroin weighing 73.87 grams, a paper package containing 5.84 grams of heroin, 19.87 grams of crack cocaine, and scales covered in white powder. The total value of the drugs was approximately £9,510.

Forensic examination linked the Appellant to the drugs via fingerprints on packaging. A caretaker confirmed the Appellant's repeated attendance at the flat over preceding weeks. The Appellant handed himself in on 22 August 2022 and was arrested and cautioned, declining to comment during interview. There was a delay of 7 to 8 months before formal charges and first court appearance, during which the Appellant was serving a licence recall sentence.

The Appellant had a prior criminal history including four convictions for seven offences between 2008 and 2020, notably two offences of possession of Class A drugs with intent to supply in June 2020, for which he received 40 months' imprisonment. He was released on licence in December 2021 and was still on licence when the current offences were committed approximately five months later.

Legal Issues Presented

1. Whether the starting point for sentencing was appropriate and not arbitrary.
2. Whether the sentencing remarks provided sufficient clarity on how the sentence was reached.
3. Whether the overall sentence was manifestly excessive.
4. Whether the mitigating factors, including time served on licence recall and remand conditions, were properly considered.

Arguments of the Parties

Appellant's Arguments

• The starting point for sentencing was arbitrary, with the Learned Recorder incorrectly placing the amount of drugs at the upper end of the Category 3 range despite the indicative weight for such cases being 150 grams.
• The sentence was more consistent with a Category 2 offence, which carries a higher indicative quantity, thus the starting point was inappropriate.
• The uplift of six months for aggravating factors was unclear, and the sentencing remarks lacked clarity on the treatment of mitigation.
• The Appellant suffered prejudice due to a lengthy delay between arrest and charge while on licence recall, which should have been taken into account.
• The time served on remand did not count towards the sentence because the Appellant was a serving prisoner, and the difficult conditions of imprisonment during Covid should have been considered mitigating factors.

Respondent's Arguments

• The Crown accepted the case fell within Significant Role / Category 3 under the Drugs Guidelines, with a starting point of 4 years 6 months and a sentencing range of 3 years 6 months to 7 years.
• Aggravating factors included previous similar convictions and offending while on licence, which justified an uplift.
• The defence’s acceptance of the Crown’s position on categorisation and aggravating features was realistic, except for personal mitigation and time served considerations.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the force in the Appellant's submissions regarding the inappropriate placement of the offending at the upper end of the Category 3 range based on quantity. The Drugs Guidelines specify that for supply directly to users, including street dealing, the quantity is less indicative of harm and the starting point should not be solely based on quantity. The court found no basis for increasing the starting point from 4 years 6 months on account of the quantity of drugs, noting that the number of wraps merely reflected packaging for street deals.

However, the court found the aggravating factors of recent and relevant previous convictions for similar Class A drug offences, committed while on licence, justified a substantial elevation from the starting point to approximately 5 years 6 months. This reflected the seriousness of reoffending shortly after release despite a substantial custodial sentence.

Regarding mitigation, the court held that the Appellant was responsible for recall to prison and the associated time served, which did not constitute mitigation. The non-counting of remand time was also a consequence of reoffending on licence. The court accepted that Covid-related prison conditions were a relevant mitigating factor considered by the sentencing judge. Other mitigation was unexceptional and could not justify more than a three-month reduction.

Consequently, the court concluded that the original sentence of 6 years 6 months was manifestly excessive and substituted a sentence of 5 years and 3 months' imprisonment.

Holding and Implications

The court ALLOWED THE APPEAL against sentence, quashing the original 6 years 6 months' imprisonment and substituting it with a sentence of 5 years and 3 months' imprisonment.

This decision directly affects the Appellant by reducing the custodial sentence to reflect proper application of the Drugs Guidelines and appropriate consideration of aggravating and mitigating factors. No new legal precedent was established.