R v Faisel Khalil

A defendant convicted after trial of the more serious offence must be sentenced for that offence. The prosecution’s earlier willingness to accept a plea to a lesser offence does not reduce the proper sentencing starting point.

In assessing harm, a high risk of death or severe physical or psychological harm can justify the higher harm category even where the victims report limited lasting impact. An appellate court will not intervene where the sentencing judge correctly categorised the offending, properly considered aggravation and mitigation, and the resulting sentence is not arguably manifestly excessive.

The applicant was convicted at the Crown Court at Bradford of conspiracy to possess a firearm with intent to endanger life, contrary to section 1(1) of the Criminal Law Act 1977. He was sentenced to 14 years’ imprisonment.

The conspiracy culminated in the discharge of a shortened shotgun twice through the front door of a family home. The applicant acted as intermediary between the instigator and the co-defendant who fired the weapon.

After a single judge refused leave to appeal against sentence, the applicant renewed the application 13 days late. He contended that the judge had wrongly rejected victim letters, wrongly assessed harm as Category 2 rather than Category 3, and should have reflected the prosecution’s former willingness to accept a plea to a lesser offence.

1. The court refused an extension of time and dismissed the renewed application for leave to appeal against sentence.

2. The Recorder was entitled to be sceptical about the letters said to have been written by the complainant and his wife. In any event, the letters were neutral to sentence. The harm assessment depended on the high risk of death or severe physical or psychological harm created by firing the shotgun into an occupied family home, not on whether the victims reported substantial lasting harm.

3. The Recorder had correctly assessed the offending as Category 2 harm and Culpability A. Although he adopted a starting point below the Category 2 range, he was entitled to increase it for the applicant’s previous convictions, the shortened firearm, and the steps that prevented its recovery. There was little available mitigation.

4. The prosecution’s pre-trial indication that it would accept a plea to a lesser offence was irrelevant. The applicant had not entered such a plea and was convicted by the jury of conspiracy to possess a firearm with intent to endanger life. He therefore had to be sentenced for that offence.

5. Taking the aggravating and mitigating factors into account, the 14-year sentence was not arguably manifestly excessive.

• Court of Appeal (Criminal Division): Refused an extension of time and dismissed the renewed application for leave to appeal against sentence: [2024] EWCA Crim 810.

• Crown Court at Bradford: On 26 August 2022, the applicant was convicted by a jury. On 9 September 2022, Mr Recorder McKone KC sentenced him to 14 years’ imprisonment.

• Single judge: Refused leave to appeal against sentence.