Khan & Ors, R v

The drug-offence sentencing guideline applies to a conspiracy to supply controlled drugs. It must be applied with common sense and flexibility, rather than as a rigid framework. In a conspiracy involving multiple transactions, the court may assess harm by reference to the aggregate quantity supplied. It must nevertheless sentence each offender according to that person’s role, knowledge, period of involvement and identifiable part in the enterprise.

The category 3 provision for street dealing does not cap sentencing where an organised operation has distributed quantities far exceeding the small amounts normally associated with category 4. It was intended to raise small-scale street dealing into category 3, not to shield large-scale commercial supply from an assessment based on its true harm.

The four appellants pleaded guilty in the Crown Court at St Albans to a conspiracy to supply Class A drugs. Kazim also pleaded guilty to two further Class A drug offences committed while on bail. The conspiracy operated for about nine months through a central telephone line and supplied heroin and cocaine in street-level deals. Its income was substantial and several kilograms of drugs were supplied.

Umar and Arfan controlled the operation. Ahsan and Kazim held lesser but trusted roles. The sentencing judge treated the conspiracy as category 1 offending and imposed sentences of nine years on Umar and Arfan, seven years on Ahsan, and a total of seven years on Kazim.

The appeals raised the application of the drug-offence sentencing guideline to conspiracies, the effect of the street-dealing category, and the proper categorisation of each appellant.

1. The appeals were allowed in part. Umar’s and Kazim’s appeals against sentence were dismissed. Arfan’s sentence was reduced from nine to eight years’ imprisonment. Ahsan’s sentence was reduced from seven years to five years and three months’ imprisonment.

2. The court held that the drug-offence sentencing guideline applies to conspiracy to supply a controlled drug. Nothing excluded conspiracy. The guideline’s language concerning roles, management, influence and knowledge of an operation was apt for multi-offender conspiracies. It would also be anomalous if the guideline’s application depended upon whether the prosecution charged a substantive supply offence or a conspiracy.

3. The guideline is guidance, not a statutory code. The sentencing court must make a fair overall assessment of harm and culpability. It may aggregate the quantities represented by multiple transactions in a conspiracy. It must then assess each offender’s culpability by role and awareness, and make an appropriate adjustment where the offender participated only for a limited period, in limited transactions, or in a smaller part of the enterprise. Participation in a wider conspiracy is itself aggravating, particularly where the offender understood its scale.

4. The category 3 street-dealing provision was intended to move otherwise category 4 small-quantity dealing into category 3 because the quantity carried by a street dealer understates harm. It did not require all street-level dealing, whatever its aggregate scale, to remain in category 3. Umar and Arfan therefore fell within category 1. Ahsan and Kazim, whose proven involvement was more limited, properly fell within category 3 in significant roles, subject to aggravating and mitigating adjustments.

5. A prior judicial indication created a legitimate expectation that Arfan would be sentenced below a leading role. It did not create any further expectation as to sentence. His correct significant-role category, previous conviction and guilty-plea credit produced an eight-year term. Ahsan’s limited two-day involvement required a category 3 starting point, producing a five-year-three-month sentence after credit. Kazim’s overall seven-year sentence, including consecutive punishment for offending on bail, was not excessive.

• Court of Appeal (Criminal Division) — In [2013] EWCA Crim 800, allowed Arfan’s and Ahsan’s sentence appeals in part and dismissed Umar’s and Kazim’s appeals.
• Crown Court at St Albans — His Honour Judge Plumstead sentenced the appellants after guilty pleas to conspiracy to supply Class A drugs; Kazim was also sentenced for two further Class A drug offences committed while on bail.