R v Hyzaifah Khan

In sentencing appeals for possession of Class A drugs with intent to supply, a defendant may have more than a limited role where the evidence shows organised dealing, concealment, drug-related records and an expectation of significant financial advantage. A late claim of coercion may carry little weight if it was not advanced below and is inconsistent with the defendant’s earlier account. An indication of a likely guilty plea is insufficient to obtain the maximum reduction; the indication must be unequivocal. Where the sentence exceeds the maximum period capable of suspension, immediate detention is required.

The appellant pleaded guilty at the Crown Court at Aylesbury to two offences of possessing Class A drugs with intent to supply, involving cocaine and heroin. He received concurrent sentences of three years’ detention in a young offender institution. He appealed against sentence, arguing that he had a lesser rather than significant role, that insufficient weight had been given to mitigation, that he should have received a larger reduction for his guilty pleas, and that the sentences should have been suspended. The central issues were the proper assessment of culpability, mitigation, plea credit and suspension.

1. Appeal dismissed. The sentences were neither excessive nor wrong in principle.
2. Role and culpability. The Recorder was entitled to find that the appellant had a significant role under the relevant sentencing guideline. The tick list and other drug-related information on his phone, sophisticated concealment, dealing in two different Class A drugs and the expectation of significant financial advantage all pointed to more than a limited role. The category 3 harm assessment was not challenged and the overall categorisation could not be criticised.
3. Coercion and mitigation. The appellant’s account that he had been threatened with serious injury was not advanced in mitigation before the Recorder and was absent from his account to the Probation Service. It was therefore given little weight. The Recorder had properly considered the strong mitigation, including previous good character, and allowed a six-month reduction. The further psychological and prison reports, and the evidence from the appellant’s mother, did not make the sentence excessive.
4. Guilty plea reduction. The court applied the principle in R v Plaku [2021] EWCA Crim 568, [2021] 4 WLR 82, that an indication of a guilty plea must be unequivocal. The appellant had not indicated a guilty plea in the Magistrates’ Court; saying that he would likely plead guilty in the Crown Court was insufficient. The 25 per cent reduction was therefore unimpeachable.
5. Suspension. Because the sentence exceeded the two-year maximum capable of attracting suspension, the Recorder was bound to impose immediate detention.

• Court of Appeal (Criminal Division). On 7 March 2023, the court dismissed the appeal against sentence.
• Crown Court at Aylesbury. On 30 May 2022, the appellant was sentenced to concurrent terms of three years’ detention in a young offender institution after pleading guilty.