R v Mohammed Saleh & Anor

On 28 March 2022, in the Crown Court at Birmingham before His Honour Judge Richard Bond, Basharat Hussain, then aged 46, pleaded guilty to one count of conspiracy to possess counterfeit goods in the course of a business (count1). Six counts of unauthorised possession of goods bearing a sign likely to be mistaken for a registered trademark (“trademark offences”) were left to lie on the file (counts 14 to 19). One count of perverting the course of public justice (count 25) was likewise ordered to lie on the file.

On 21 October 2024, in the same court before His Honour Judge Simon Drew KC, Mohammed Saleh, then aged 49, changed his pleas to guilty to count 1, which we have already described, and guilty to three trademark offences (counts 2, 3 and 4).

On 11 April 2025, Judge Drew sentenced Saleh to 12 months' imprisonment on count 1, with no separate penalty on counts 2 to 4. Hussain was sentenced to 18 months' imprisonment on count 1.

There were co-defendants who were sentenced by the judge at the same time. Following a very late plea of guilty to count 1 Mahroof Hussain ("Mahroof") was sentenced to five years' imprisonment with other counts ordered to lie on the file. Nadeem Mohammed pleaded guilty to count 1. He was sentenced to a community order for 18 months.

Saleh and Hussain appeal against sentence by leave of the single judge.

Each of the appellants had filed a written basis of plea which the prosecution accepted and which formed the foundation of the judge's approach to the facts. This means that we are able to state the facts shortly.

Between 2017 and 2020 the appellants were involved in a conspiracy to possess counterfeit goods for sale. Those goods included a very large number of well-known brands including Adidas, Nike, Chanel, North Face and Louis Vuitton, to name only a small selection. Tens of thousands of fake items were imported by Mahroof who distributed the goods for sale at low prices. Hussain assisted Mahroof by collecting and delivering counterfeit goods in boxloads on an ad hoc basis. He would be paid £50 to £100 for each day that he worked. Saleh also collected and delivered boxes of items in return for payment. After a while he started taking orders for goods from Mahroof for onward sale at market for his own gain.

When premises linked to Mahroof were searched, thousands of counterfeit goods were seized, along with equipment designed to affix fake logos to clothing. The overall value of the conspiracy was assessed at £2 million. The prosecution submitted that a fair appraisal of the appellants' personal involvement was in each case between £300,000 and £1 million.

After Hussain was arrested and interviewed, he arranged for someone he knew to write to the respondent on NHS stationery in order to corroborate his own false account that he had used a van to move house and not for criminal purposes. That person stood trial for an offence of perverting the course of public justice and was acquitted. It is not in dispute before us that Hussain obstructed justice by arranging for an innocent third party to support a false account of events.

Prior to this offending, Saleh had no previous convictions. Hussain had 20 convictions accrued both as a child and as an adult; none was related to counterfeit goods and his last conviction for an offence of dishonesty was, as we understand it, in 2000.

When sentencing Hussain, the judge had the benefit of a pre-sentence report. The report noted that Hussain had at the time of the conspiracy been vulnerable to opportunities to make easy money following a period of drug and alcohol misuse. He appeared to the author of the report to be genuinely remorseful. He was taking steps to remain free from substance misuse. He worked hard as a driver and cared for his teenage son who had been diagnosed with autism. The report concluded that his offending was likely to be "an isolated incident" and that the risk of further offending was low.

There was no pre-sentence report about Saleh. Mr Forte KC who appeared on Saleh's behalf then, as he does now, told the judge that after much to-ing and fro-ing to court to meet the probation officer, Saleh had been refused entry to the court building. As his case was not listed the security guards did not understand why he was there. That may be so but we have been directed to no correspondence or other evidence to suggest that his solicitors complained or sought to rearrange his appointment. It is plain from the transcript of proceedings, and Mr Forte has accepted today, that the judge was not asked to adjourn sentence for a pre-sentence report or to take any other step that would secure a report.

In his sentencing remarks the judge observed that the conspirators, including the appellants, had been involved in a sophisticated, professional organisation that had sold counterfeit goods over a substantial period of time.

As regards Hussain the judge held that he had played an important role, helping Mahroof with the administration and running of the business. He was trusted to pay out and collect money. The judge applied the sentencing guideline applicable to individuals who commit trademark offences. He concluded that Hussain had a significant role in the business, giving rise to level B culpability. He accepted the prosecution estimate that the equivalent retail value of legitimate versions of the goods with which Hussain was personally involved was between £300,000 and £1 million, giving rise to Category 2 harm. The starting point for a Category B2 offence is two years' custody and the category range is one to three years.

The judge held that the sophistication and longstanding nature of the overall conspiracy required an upward adjustment from the two year starting point, as did Hussain's decision to exploit a third party who was prosecuted as a result of Hussain's false account and obstruction of justice. The notional sentence would rise to two-and-a-half years on account of those factors.

On the other side of the scales, the judge gave weight to a number of mitigating factors including Hussain's limited financial gain and his efforts to put his offending and his substance abuse behind him. The judge acknowledged that these factors warranted a significant downward adjustment. The sentencing remarks do not indicate the precise reduction that he made. Rather the judge made a global reduction to 18 months' imprisonment to reflect not only mitigating factors but also a 20 per cent discount for Hussain's guilty plea.

The judge went on to consider whether the sentence of imprisonment could be suspended. He stated:

Turning to Saleh, the judge held that his principal role was to collect and deliver boxes. He took orders from Mahroof and at times received items directly from him. His offending also fell within Category B2 but the judge made a downward adjustment from the two-year starting point to reflect what he called "some features of lower culpability". In this way the judge reached 21 months' imprisonment. He then made a further unspecified reduction to reflect a number of mitigating factors, such as Saleh's lack of previous convictions, remorse, limited financial gain and personal circumstances. Applying a 10 per cent reduction for Saleh's guilty plea he reached a sentence of 12 months' imprisonment on count 1. As we have said, he imposed no separate penalty for the other offences.

After the judge had delivered his sentencing remarks, in response to a question from prosecuting counsel, the judge confirmed that he had not suspended Saleh's sentence for the same reasons as he had given in Hussain's case.

Mr Forte contends that the judge erred in not suspending the sentence of imprisonment in all the circumstances of Saleh's case. He submits that the judge should have awaited a pre-sentence report if he was not minded to suspend the sentence. He emphasises that the judge did not refer to the Overarching Guideline on Imposition of Community and Custodial Sentences ("the imposition guideline"). He submits that the judge failed properly to take into account the relevant factors weighing in favour of a suspended sentence order under the imposition guideline. He submits that Saleh posed no risk to the public. He had a positive good character. He had pleaded guilty and his conduct while on bail was unimpeachable.

Mr Forte invites us to conduct the exercise of weighing the factors under the imposition guideline in the absence of any analysis by the judge. Directing us to the factors in the imposition guideline that indicate that it may be appropriate to suspend a custodial sentence, he submits that (i) there was a clear prospect of rehabilitation and (ii) two recent strokes provided Saleh with strong personal mitigation.

We have also had regard to the respondent's written submissions which note that the sentence imposed, and its nature, was within the range of permissible sentences available to the judge.

It is not in dispute that the custody threshold was crossed and there is no challenge to the length of the sentence.

As regards whether or not the sentence should have been suspended, there is nothing before us to suggest that a pre-sentence report would have brought to light any additional relevant information that was not before the judge and considered by him. Irrespective of whether a pre-sentence report had previously been ordered, the judge was entitled to conclude that a report was unnecessary by the time he sentenced Saleh. We ourselves do not require a report for today's purposes.

The judge omitted to deal with the question of a suspended sentence in the body of his sentencing remarks. There is nothing to suggest that this omission was anything other than a slip which he corrected when it was raised with him. He confirmed that he would not suspend the sentence for the reasons that he had given in Hussain's case, namely that the seriousness of the offending did not allow him to do so. There is no basis for interfering with the imposition of immediate custody because of the judge's initial slip.

The judge did not refer at all to the imposition guideline. Nevertheless his sentencing remarks amply demonstrate both that appropriate punishment could only be achieved by immediate custody and also that this factor in the guideline should be decisive. Saleh helped to breathe oxygen into a sophisticated and sustained conspiracy, as well as selling counterfeit goods for his own benefit. Against that background the judge was entitled, and correct, to emphasise the seriousness of the overall offending. We reject the submission that the citation of the imposition guideline or the recitation of the factors that must be considered under it would have made any difference.

We have considered the prison report produced by Saleh's offender manager for the purposes of this appeal. This brief report shows that Saleh has not caused or encountered any particular problems in custody. We do not regard the information in the report as assisting any elements of the grounds of appeal.

For these reasons the judge was entitled to impose a sentence of immediate custody. We would reach the same conclusion as the judge, conducting the exercise for ourselves. There are no grounds for this court to interfere with the exercise of the judge's discretion. Saleh's sentence being neither manifestly excessive nor wrong in principle, his appeal is dismissed.

On behalf of Hussain, Mr Baker likewise submits that the judge erred in not suspending the sentence of imprisonment. He submits that the delay between Hussain's guilty pleas and his sentence was inordinate. He emphasises that during that time Hussain had undertaken charitable work, obtained a class 1 HGV licence and remained free of drugs. He posed little or no danger to the public.

Mr Baker submits that two powerful factors in favour of a suspended sentence order were present: (i) the realistic prospect of rehabilitation; and (ii) strong personal mitigation. He submits that this was not a case where rehabilitation could only be achieved by immediate custody.

The respondent's written submissions again note that the sentence imposed and its nature was within the range of permissible sentences available to the judge.

In considering whether to suspend Hussain's sentence, the judge expressly took account of the delay in the case coming before the court and the age of the guilty pleas. He was entitled to conclude that neither the delay, nor anything that had happened during that period, warranted anything other than immediate custody. He was entitled to conclude that Hussain's part in the conspiracy meant that appropriate punishment could only be achieved by immediate custody. We agree with the respondent that the sentence of immediate imprisonment was within the range of permissible sentences available to the judge. There are no grounds for this court to interfere with the exercise of the judge's discretion.

We have considered a prison report written on behalf of Hussain's offender manager for the purposes of this appeal. While it shows that Hussain is making adequate progress in prison, it does not raise any matter that can advance his appeal before us. Hussain's sentence being neither manifestly excessive nor wrong in principle, his appeal against sentence is dismissed.

Accordingly, despite the clear and succinct submissions of both counsel, both appeals are dismissed.