R v Peter Masih & Anor

These are two appeals against sentence brought with the leave of the Single Judge. On 9 January 2024, in the Crown Court at Birmingham, the appellant, Singh, pleaded guilty on re-arraignment to an offence which was count 3 on the indictment, that is conspiracy to conceal, convert, disguise or transfer criminal property, contrary to section 1(1) of the Criminal Law Act 1977. On 5 March 2024, at the same Crown Court, the appellant, Masih, pleaded guilty on re-arraignment to that count also. They were sentenced on 20 August 2024 by HHJ Maylin. By this time Masih was aged 44 and Singh was aged 42. Masih was given a sentence of 8 years' imprisonment. An appropriate surcharge order was made. Singh was given a sentence of 7 years and 2 months' imprisonment. The statutory surcharge order is to be dealt with at the conclusion of the Proceeds of Crime Act proceedings.

Count 1, which was a count of conspiracy to supply a controlled drug of Class A, was ordered to lie on the file against him in the usual terms. There were a number of co-defendants. One was Maninder Dosanjh, who had pleaded guilty to conspiracy to supply a controlled drug of Class A, conspiracy to fraudulently evade the prohibition on the exportation of controlled drugs of Class A and conspiracy to conceal, convert, disguise or transfer criminal property. He was sentenced to 16 years and 8 months' imprisonment.

The case concerns the activities of an organised criminal gang located in the Midlands that supplied hundreds of kilograms of Class A drugs, namely cocaine, to a wholesale market. This involved not only distributing cocaine within the UK but also exporting some of it to Australia. It was a lucrative business that generated millions of pounds of cash, which the gang then had to expend considerable time and effort on collecting, counting and passing on to others who helped launder it and most likely helped to get some of it out of the UK. Both drugs and cash were transported using a cohort of couriers.

It was the prosecution case that given the extensive nature of this criminal enterprise, and the clandestine measures used to move both product and profits, even those couriers needed to be trusted by the gang and so were well aware of what they were involved in and were suitably recompensed. The investigation into the gang was known as "Operation Kindling" and utilised surveillance and telephone data in particular. The gang was primarily based in the Midlands and was headed by Tarlochan Mahal. However, it had links across the UK and overseas. Telephone messages suggested that by 2020, Mahal was directing his subordinates from overseas, possibly from Dubai. He did this by issuing directions over the phone, through trusted lieutenants and managers, who in turn controlled a number of couriers and workers. The gang's activities were focused on the import, sale and export of cocaine. These were conducted on a wholesale commercial scale generating many millions of pounds in turnover. More particularly, the gang was involved in the wholesale supply of hundreds of kilograms of cocaine throughout the Midlands and up to the north of England and the movement of millions of pounds in cash generated by criminal activities and the exportation of hundreds of kilograms of cocaine to Australia.

Much of the evidence in the case arose from the successful exploitation by law enforcement agencies of the EncroChat encrypted communications platform. The gang used hire vehicles and a small fleet of pool vans to transport cash and drugs. A significant amount of the evidence in the case came from telephone data, including EncroChat and "burner" phones.

Mahal was the leader of the gang and although lived outside the UK, he controlled properties in the Midlands including the Premier Clayton Convenience Store in Newcastle under Lyme, which he employed Singh to manage on his behalf, and a fast food shop called "Angelo's Chippy" in Burton-on-Trent. Singh used the EncroChat handle "Harryputter". Masih used the EncroChat handle "Moralblazer". He lived in Oldbury at the time. He was Mahal's brother-in-law and became the gang's trusted money handler. As drivers collected cash from around the country it would quite often be brought to Masih.

Examples of the scale of the conspiracies were on 9 June 2020, when Usman was stopped on the M25 with over £1 million in cash, in a large compressor which had been converted into a hide in the back of his van and on 13 August 2022, when Kalirai was stopped by police having returned to the Midlands with a consignment of frozen chicken collected from Tilbury Docks in Essex amongst which was 161 kilograms of cocaine, with a street value of between £5 million and £6 million. An example of Masih's role was that on 3 April 2020, when paper including sums of £116,000 and £300,000 were dropped off to Masih, he was to use a van and hi viz vest for cover.

The handle Harryputter was originally used by Mahal but was passed to Singh when Mahal left the country possibly in early 2020. The notes kept by the user of this handle indicated that Singh was being given substantial sums of cash in October, November and December 2019 and in early 2020. By April 2020, Singh had taken on the Harryputter handle from Mahal. Messages sent and received by Singh indicated that he was well aware of what both he and his employer were involved in and showed the extent to which Singh had assisted Mahal launder the proceeds of the gang's activities.

In police interview on 13 July 2023, Singh gave no comment. Masih declined to answer questions asked of him in interview on the same date.

Singh's handle of Harryputter was shown to have discussed a total cash amount of £732,045 in the period 4 April to 30 April 2020. That is a total of 26 days. Singh was involved in cocaine-related messages, so he knew what the gang were doing. He worked principally to Mahal and there was an inference he used a shop as a front for laundering the gang's cash. Harryputter notes from a time when Mahal used this handle showed large amounts of cash were being handled by Singh on his behalf before the period we have referred to.

Masih's handle of Moralblazer was shown to have discussed a total cash amount of £1,344,900 in the period from 3 April to 8 June 2020, that is a total of 66 days. He was able to talk directly to Mahal.

For the purposes of a sentencing hearing which lasted two days and covered a large number of defendants, the judge had the advantage of a number of character references, Sentencing Notes and reports. We note that the Crown Court sentenced the appellants without reports and although the sentences are not invalidated, section 33 of the Sentencing Act 2020, provides that the court must now attain reports unless it agrees that they were unnecessary or are not now necessary. We so direct that they are not necessary.

In her detailed sentencing remarks in which, as we have said, the judge had to deal with all of the offenders the judge turned specifically to the case of Masih at page 16. She said that he had been responsible for overseeing the movement of funds generated by the organised crime group’s operations. He had allowed his home to be used for counting the proceeds. She put out of her mind his previous convictions which she did not consider aggravated the present offending. The judge had read a number of references in his case including from a Minister in relation to place of worship and an employer. She was sure that his remorse was genuine and that he had a good job to go back to and get back to his family. She noted that Masih was now aged 44 but had been aged 40 at the time of the offending. She accepted that he was simply another employee of the organised crime group. She accepted that he had only been involved for a few months, but she also noted that there was a degree of trust between him and Mahal, who knew that he would not rip him off. The judge was satisfied that this was a Culpability A, Harm category 3 case. The amount concerned was over £1.3 million. The judge noted that the starting point referred to in the guideline is for an amount of £1 million.

The judge said that by reference to the guideline the starting point would be one of 8 years' custody but she had to look at the underlying offence, that is the commercial sale of cocaine both in and out of the UK. In her judgment, this took it out of the money laundering guideline and so the appropriate starting point after trial, for someone with this appellant's role, would have been one of 12 years. The judge could reduce that by a number of factors, his role, the remorse he had expressed and his positive character. That meant the least sentence she could impose on him was one of 9½ years' custody. She then gave him credit of his plea of 15 per cent leading to a sentence, as we have said, of 8 years' imprisonment.

The judge then turned to the case of Singh. He was involved over a few days in April and some £732,045 was discussed. He had no doubt there was drug money involved. He worked principally for Mahal and there was an inference that his shop had been used as a front for laundering the cash generated or at least some of it. The judge was satisfied that he had played a significant role towards the upper end of the scale. He was 42 years of age and of previous good character. She had no doubt that he had a very strong work ethic, although originally he thought that what he had been asked to do was just business, the judge said that he must have some idea of what was going on.

The appellant had pleaded guilty on what was to be the second day of the trial although no jury had yet been sworn. The judge accepted that he had been a support for his wife and the impact of custody would be most keenly felt by his family when they were left behind. She accepted that on release from custody he would be a good citizen. Nevertheless she came to the view that an appropriate starting point in his case would be one of 6½ years' custody. Again, she had to look at the underlying offence and the appropriate starting point for a person in his position would have been one of 10 years after trial. That could be reduced because of his genuine remorse and good character, and that the time he had now been spending industriously in custody. That brought the notional sentence down to one of 8 years. The judge could only give credit of 10 per cent because of the late stage at which the plea was entered. That resulted, as we have mentioned, in a sentence of 7 years and 2 months' imprisonment.

On behalf of Masih, written grounds of appeal were drafted by Mr Garcha KC and which have been adopted by Mr Lally at the hearing before this Court. He submits that the sentence imposed was manifestly excessive for the following reasons. First, whilst it is acknowledged that the broader context in which this offence of money laundering was committed was highly relevant and justified an uplift in the starting point, the judge erred in the extent to which she applied that uplift. Secondly, uplifting the starting point from 8 years to 12 years and thereby going completely outside the sentencing range for an offence involving this amount meant that the sentence is manifestly excessive. Thirdly, the facts of this offending did not justify a starting point of 12 years prior to discount.

Mr Lally fairly acknowledges that there can be no criticism of the amount of credit given for the guilty plea in this case and that the judge applied a generous reduction for the evidence of remorse and other personal mitigation.

On behalf of Singh, Mr Lally both drafted the written grounds of appeal and has appeared before this court today. He submits first, that this was properly to be regarded as a category 3B case and not a category 3A case. That should have provided a starting point of 5 years not 7 years, with a category range of 3 to 6 years. The judge was therefore wrong, he submits, to conclude the appropriate starting point was 6.5 years before the adjustment for the underlying offence to 10 years. He submits there is thereby an element of double counting. Furthermore, he submits that the appropriate starting point should have been less than 5 years given that a starting point for a 3B offence is 5 years but that is based on a sum of £1 million. The sum here was to some degree less than that. Furthermore, he submits there should not have been an uplift anywhere near the figure of 10 years in the notional sentence having regard to the underlying offence. As Mr Lally has fairly acknowledged before this Court, this is the fundamental ground of appeal and is common to both. Finally, in what he accepts as a subsidiary submission Mr Lally submits that parity with the case of Masih required that there should have been a wider distinction in the sentence passed on Singh. There was only a 10-month difference.

On behalf of the respondent Mr Brocklehurst has assisted this Court both in writing and oral submissions today. First, he makes submissions in relation to the features that are common to both appeals. He submits that first, this was an extraordinary case that demanded sentences outside the applicable guideline range for both appellants so as to reflect the underlying offence. Indeed, that is what the guideline required the court to do. It is difficult to overstate the harm this quantity of cocaine must have had by the time it reached the streets. Secondly, he submits both appellants had worked closely with those supplying commercial quantities of cocaine and would have been fully aware that they were enabling a massive criminal enterprise. Notwithstanding their own particular places in the hierarchy the court was entitled to reflect the scale of the conspiracy in sentences imposed and the fact that each appellant knowingly facilitated the ability of leading role criminals to operate from the safety of a foreign jurisdiction. Thirdly, he submits that the judge properly weighed all factors relevant to sentence, took into account nothing which she should not have done and gave particular careful thought to all the mitigation available to both these appellants. He submits that both appellants played highly significant roles in enabling a global drugs enterprise which in the space of approximately 3 months turned over in the region of £10 million and 1400 kilograms of cocaine. The agreement contemplated increasing this supply to 2000 kilograms a month. Both appellants were close not only to the cocaine but also to those managing the operation including the leading figure of Mahal. They both knew the scale and nature of what they were involved in. They both knew of and enabled highly sophisticated methods and detailed planning to ensure that cash was moved covertly around the country and reached those who managed the operation from the safety of Dubai. He submits this justified the judge placing them in culpability category A and then moving outside the applicable range as required by any proper assessment of what the money laundering guidelines calls the "Harm B" factor.

Mr Brocklehurst submits that in the circumstances of this case the sentencing court was entitled to consider that there was little to distinguish between those who physically moved cocaine and those who held or moved the cash that represented the profits and enabled the conspiracy to operate. The court, he reminds us, is entitled to have regard to the harm that is intended or might foreseeably have been caused had the organised crime group been stopped (see section 63 of the Sentencing Act 2020).

In response to the grounds of appeal specifically advanced by Masih, Mr Brocklehurst submits that first, the judge did not err in imposing an uplift of 4 years to reflect his part in the large-scale conspiracy, it justly reflected his contribution to the enterprise. Secondly, he submits the reduction of 2 years and 6 months to reflect his personal mitigation might be viewed as particularly generous.

In response to the grounds of appeal advanced on behalf of Singh, Mr Brocklehurst submits that first, that the judge had ample material to conclude that his role required an initial starting point of 6½ years' custody and the appropriate adjustment for the underlying offence was 3½ years making 10 years. This fairly reflected the fact that the appellant had knowingly involved himself in such a large conspiracy. Secondly, he submits the judge found that he had been involved in the conspiracy for at least 26 days, had works directly to Mahal, had used an EncroChat phone and had also used the cover of the convenience store to launder drugs money. This justified the assessment that he fell into culpability category A, thereby giving rise to a starting point of 7 years' custody. The judge then reduced the initial sentence by 6 months to take into account the fact that the appellant was directly involved in the sum less than £1 million, the figure on which the guideline is based. To the extent that parity of sentence is of any significance Mr Brocklehurst submits that it fails in the face of any reasonable analysis. The key distinguishing features between Masih and Singh were that the second appellant appeared to have stopped in May while the first appellant had been active in June and had handled £1.3 million rather than £732,000. The judge no doubt had proper regard to these differences between them when she selected a lower starting point for the second appellant and then applied a proportionately lower uplift for the underlying offence, that is 3½ years rather than 4 years compared to Masih. In addition, Masih was entitled to a greater discount for his plea because he had entered a guilty plea before trial.

Finally Mr Brocklehurst submits that the judge gave a discount for personal mitigation in the case of Singh of 2 years which could be regarded as generous. Overall he submits that the judge had presided over a lengthy sentencing hearing and carefully considered a significant amount of evidence. She was in a very good position to form a proper view about the conspiracy as a whole and the particular roles which these appellants had played in it. He submits that the sentences imposed are not manifestly excessive but fairly reflect the extraordinary nature of the conspiracy to which the appellants had knowingly attached themselves.

We see no merit in the suggestion that the judge placed Singh's offending into the wrong category, that is 3A rather than 3B. If anything, as we shall explain, it is arguable that she put both these cases into too low a category having regard to the underlying conspiracy but we will proceed for present on the basis that category 3A was appropriate. We also see no merit in the suggested disparity between the two sentences for the reasons set out by Mr Brocklehurst.

The main issue which both these appeals raise is whether the judge was then entitled to impose the uplifts which she did from the starting point in the money laundering guideline to go above the suggested range in that guideline. We therefore turn to the relevant guidelines. The money laundering guideline refers first to degrees of culpability. Medium culpability is where there is, for example, a significant role, where offending was part of a group activity. Then Harm has to be assessed. Harm is initially assessed by the value of the money laundered by reference to six categories. Category 3 is where the money laundered is between £500,000 and £2 million with a starting point being based on £1 million. It is important to note however that the offending in the present case in fact concerned some £10 million. Category 1 in the guideline relates to offending where the money involved is £10 million or more. Category 2 is when the money involved is between £2 million and £10 million. Relevant starting points are then given based respectively on a value of £30 million and on a value of £5 million.

It is arguable that in the present case the offending here fell at a higher level than category 3 and so would have been at the cusp of categories 1 and 2. But in any event it is important not to lose sight of what the guideline expressly says in relation to what it calls "Harm B":

The Definitive Guideline on offences of supplying or offering to supply controlled drugs also distinguishes between different roles. The relevant category, if one were considering that guideline, for present purposes would be a significant role. In assessing Harm, that guideline distinguishes between quantities of drugs. In the case of cocaine an offence involving 5 kilograms would fall into category 1. The guideline also expressly states that where the operation is on the most serious and commercial scale involving a quantity of drugs significantly higher than category 1 sentences of 20 years and above may be appropriate depending on the offender's role.

To illustrate the kinds of sentences that may be appropriate under the Drugs Guideline, if a case falls within category 1 leading role the starting point is 14 years' custody with a range of 12 to 16 years. If a case falls within category 1 significant role, the starting point is 10 years' custody with a range of 9 to 12 years.

In R v Khan [2014] 1 Cr App R(S) 10, there were appeals against sentence in a conspiracy case involving the supply of drugs. The Court considered the balance that needs to be struck when determining a sentence which fairly reflects both an individual conspirator's role and a wide scope of the conspiracy to which they have attached themselves. At [33] the Court said:

In the present cases the judge did not address what the sentence should have been having regard to the fact that the appellants were convicted of conspiracy and not substantive offences. It could, as we have said, be argued in line with Khan that she ought to have started on the cusp of categories 1 and 2 since the conspiracy involved £10 million but then reduced that to take account of each individual appellant's specific actions.

In Shaun Smith & Ors [2020] EWCA Crim 994, the Court made these general points at [20]:

It also important to have regard to what this Court said in R v Cavanagh [2021] EWCA Crim 1584 in particular at [8]:

Accordingly, it is often appropriate to take into account that a conspiracy would continue if it had not been stopped by the police. In the present cases however, this was not a particular factor for these two appellants who both said in effect that they had withdrawn from the conspiracy (see the sentencing remarks at page 17C and page 18D). The judge did not say that she did not believe that.

As we have mentioned, the guideline on money laundering itself states that money laundering is an integral component of much serious criminality. This means that to complete the assessment of Harm the court should take into account the level of Harm associated with the underlying offence to determine whether it warrants upward adjustment to the starting point within the range or in an appropriate case even outside that range. Further, where it is possible to identify the underlying offence (that may not always be possible although it was in the present case) regard should be given to the relevant sentencing levels for that offence. Here that was the drugs offence.

In the present case the judge appears to have treated each appellants’ offending as falling within category 3A where the starting point is 7 years' custody but she reduced this by 6 months in the case of Singh because of the lower amount he had handled. It is with respect not entirely clear how she arrived at a notional sentence of 8 years in the case of Masih. Importantly, the judge did address the Harm B factor but did not identify a corresponding sentence from the Drugs Guideline to compare at the sentence arrived at from the Money Laundering Guideline.

It is important at this stage to refer to what this Court said in R v Ogden [2017] 1 WLR 1224 at [72] to [26]. This suggests a figure somewhere between the two guidelines would be appropriate. That was not a case of money laundering but was a case of converting criminal property in the context of drug dealing. It is also important to refer to R v Campbell [2017] EWCA Crim 213 at [27] to [33]. There, having referred to Ogden this Court observed that it would be an error for a sentencing judge simply to prefer the heavier Sentencing Guideline (see in particular paragraph 31). The Court saw some force in the submission that in accordance with the guidance in Ogden the sentence should fall between the two competing starting points in the money laundering guideline and the drugs. Similarly in R v Thompson [2017] EWCA Crim 734 at [26], the Court considered it appropriate to take the mid-point between the two starting points and said this was an approach consistent with this Court's decision in Ogden.

In our judgment, if that overall exercise were done the resulting sentences in the present cases cannot be regarded as manifestly excessive. Uplifts of 4 years and 3½ years in the notional sentences in the cases of these two appellants were amply justified, although it would be wrong simply to transplant a recommended sentence in the Drugs Guideline into the context of an offence of money laundering. The approach which this Court has suggested in cases such as Ogden would entitle the sentencing court to give a considerable uplift to the sentence that might otherwise be imposed having regard to underlying large-scale commercial conspiracy to supply drugs. In those circumstances, we have reached the conclusion that the uplifts which the judge applied in the present cases were not manifestly excessive, particularly having regard to the acknowledged generous reductions which he then made to reflect the personal mitigation available to each of these appellants.

For the reasons we have given, these appeals against sentence are dismissed.