R v Zain Abdeen Yusuf & Ors

A sentence cannot exceed the applicable statutory maximum. Under Schedule 6 to the Firearms Act 1968, the maximum for the relevant unaggravated ammunition offence was five years. Sentences above that limit were unlawful and had to be quashed and replaced, although the overall sentences remained unchanged because the sentences ran concurrently.

Sentencing role and harm must be assessed in the round. A trusted, paid courier with operational responsibility in a large drug enterprise may have a significant role. Sophisticated evasion measures, links to serious criminality, the nature of the firearm and compatible ammunition may justify category 2 harm even where only one weapon is involved. Full guilty-plea credit is reserved for cases requiring advice or evidence to determine guilt, not delay to assess the prosecution case.

The three appellants pleaded guilty at different stages to conspiracies to supply Class A drugs and to sell or transfer a prohibited firearm and ammunition. The Crown Court at Luton, before Her Honour Judge Herbert, imposed total sentences of 22 years and six months for Yusuf, 23 years and seven months for Khan, and 18 years and ten months for Musa-Hamid.

All three appealed on the ground that their sentences for the ammunition conspiracy exceeded the statutory maximum. Musa-Hamid also challenged his role assessment, starting points, mitigation, firearms culpability and harm categories, and totality. Khan challenged his starting points, firearms categorisation, guilty-plea credit and personal mitigation. Yusuf sought a late adjournment concerning grounds on which leave had been refused. The central issues were whether the sentences disclosed errors of principle and whether the ammunition sentences were lawful.

Disposition. The appeals were allowed only to correct the unlawful sentences imposed for the conspiracy to sell or transfer ammunition. The overall sentences were unchanged.

1. Ammunition sentence. Schedule 6 to the Firearms Act 1968 imposed a maximum of five years for possession, purchase or acquisition of ammunition without a firearm certificate, unless the offence was aggravated. The offence was not aggravated. The sentences of five years and six months, six years and six months, and six years and six months were therefore unlawful. The court quashed each sentence and substituted five years.
2. Musa-Hamid. The sentencing judge was entitled to assess his role in the drugs conspiracy in the round as broadly significant. He was a highly trusted and well-paid courier with an operational role, responsibility for transferring substantial quantities of cocaine, and an expectation of significant financial advantage. Any pressure arising from a debt carried little weight. His firearms role was properly assessed as medium culpability and category 2 harm. The sophisticated use of EncroChat phones and a vehicle with a hide, the link to serious criminal activity, the fully automatic firearm and 49 rounds of compatible ammunition justified that assessment. The starting point of 11 years was within the category 2b range. The reduction for totality was sufficient.
3. Khan. A starting point of 25 years and six months for a leading role in the movement of approximately 987 kilograms of cocaine was not manifestly excessive. The firearms offence was not a category 3B case because Khan controlled the operation and the arrangements showed planning and efforts to evade detection. The category 2 assessment was also justified.
4. Guilty-plea credit. The 25 per cent exception applies where advice or sight of evidence is needed to determine whether the defendant is guilty in fact and law. It does not apply where a defendant already knows the position and delays pleading guilty to assess the strength of the prosecution evidence or prospects of conviction. R v Plaku [2021] EWCA Crim 568 reflected that guideline distinction and did not create new law. Khan was properly limited to 20 per cent credit.
5. Final orders. The late adjournment sought for Yusuf was refused. The substituted ammunition sentences ran concurrently with the firearms sentences, so each appellant’s total sentence remained unchanged.

• Court of Appeal (Criminal Division), [2024] EWCA Crim 856: allowed the appeals only to the extent necessary to correct the unlawful ammunition sentences, quashed those sentences, substituted five years for each appellant, and left the total sentences unchanged.
• Crown Court at Luton: Her Honour Judge Herbert sentenced Yusuf to 22 years and six months, Khan to 23 years and seven months, and Musa-Hamid to 18 years and ten months.