R v Mirgent Shahu & Ors

In sentencing appeals for large-scale drug conspiracies, a court may move outside the guideline bracket for a lesser role where the scale and commercial seriousness of the operation justify it. The resulting sentence must nevertheless be proportionate and adequately explained. A sentence substantially above the applicable category, or above the upper range of a higher category, is excessive if the sentencing judge gives no adequate explanation.

Where several offences are sentenced together, the court should determine appropriate notional sentences for the individual offences, make a reasoned adjustment for totality, and then apply the appropriate guilty-plea reduction. Credit depends on when and in what circumstances each plea was entered. Disparity arguments require sufficient oversight of the co-defendants’ circumstances and roles.

Three defendants involved in a conspiracy to import 139 kg of cocaine appealed following proceedings at Warwick Crown Court before Mr Recorder Butterworth. Mirgent Shahu renewed an application for leave to appeal against conviction. Florjan Ibra and Arman Kaviani sought leave to appeal against sentence.

Shahu alleged that the Recorder’s summing-up was prejudicial and rendered his conviction unsafe. Ibra challenged his role classification, the disparity between his sentence and those imposed on co-defendants, and the mitigation allowed. Kaviani challenged his role classification, the sentence for a separate possession-with-intent-to-supply offence, plea credit and mitigation. The central issues were whether the sentences were excessive or wrongly calculated, and whether Shahu’s conviction was unsafe.

1. Shahu’s conviction. The court agreed with the Single Judge’s reasons for refusing leave to appeal against conviction. The Recorder’s comments did not render the conviction unsafe, and the evidence against Shahu was very strong. The renewed application was refused.
2. Kaviani’s sentence. The court accepted that the plea to count 2 was entered at the first available opportunity and that one-third credit should have been allowed. The appropriate sentence for that count was therefore 56 months. For count 1, the Recorder was entitled to move outside the lesser-role bracket because the conspiracy concerned a very substantial quantity of drugs and was of the most serious commercial scale. However, the Recorder had not explained a notional sentence of 13 years, which exceeded even the range for significant role. The appropriate notional sentence for count 1 alone was 10 years. A three-year uplift for count 2 produced a notional total of 13 years, to which 25 per cent credit was properly applied because the plea to count 1 was entered later. The appeal was allowed. The sentence on count 1 was quashed and replaced by 9 years and 9 months; the concurrent sentence on count 2 was quashed and replaced by 56 months.
3. Ibra’s sentence. The court upheld the significant-role classification. His trusted and important operational role justified a substantial uplift, but the Recorder had not explained an 18-year notional sentence, which was excessive and above the relevant guideline categories. The appropriate notional sentence after trial was 16 years, reduced by 25 per cent for the guilty plea to 12 years. The disparity ground failed because the court lacked sufficient oversight of Shahu’s and Ball’s positions, while Kaviani’s substantially lesser role justified a notable sentencing gap. Ibra’s appeal was nevertheless allowed because his original sentence was manifestly excessive.

• Court of Appeal (Criminal Division) [2024] EWCA Crim 1505: Shahu’s renewed application for leave to appeal against conviction was refused. Ibra’s and Kaviani’s appeals against sentence were allowed and their sentences were substituted.
• Warwick Crown Court: Shahu was convicted and sentenced to 18 years’ imprisonment. Ibra pleaded guilty and was sentenced to 13 years and 6 months’ imprisonment. Kaviani pleaded guilty to two counts and received 12 years and 9 months on count 1 and 63 months concurrently on count 2.