R v Zakariya Subeir

On 23 October 2023, at the plea and trial preparation hearing in the Crown Court at Isleworth, the Appellant pleaded guilty to two offences of being concerned in the supply of a controlled drug of Class A (counts 1 and 2) and one offence of possessing criminal property (count 7).

On 12 November 2024, he was sentenced to 31 months’ imprisonment for each of the drugs offences and to three months’ imprisonment for the possession of criminal property. All sentences were ordered to be served concurrently.

A co-defendant, Ibraimo Bah, who pleaded guilty to two counts of being concerned in supplying a controlled drug of Class A to another, assault occasioning actual bodily harm and assaulting an emergency worker, was sentenced to a total of three years and eight months’ imprisonment.

With the leave of the single judge, the Appellant appeals against the overall sentence that was imposed, contending that it was manifestly excessive.

The brief facts of the case are these. The “Sonic” drugs line was a Class A street supply line operating in the Hillingdon area of West London. It was discovered by the police in December 2022. Thereafter, the police set about establishing the identity of those who were involved in the running of the line. The line used two numbers: the first number between November 2022 and June 2023, and the second number which took over in late June 2023 until September 2023. The Appellant and Bah each had two mobile telephone numbers of their own.

Analysis of the Sonic numbers and Bah’s numbers showed that Bah was in control of the first Sonic line between 12 April and 30 June 2023, and the second line when it started at the end of June up until his arrest on 13 September 2023. The Sonic line continued to run after Bah’s arrest. Police enquiries revealed that the Appellant was at times in control of the line between 5 and 13 September 2023. Evidence demonstrating this included that there were occasions where the bulk messages were sent from a cell site which was close in proximity to his home, his personal number and the drugs line co-located on journeys, including a long-distance journey to Bournemouth during that period. There were also several contacts in common between the Appellant’s number and the Sonic number. The call patterns showed that if someone was trying to get in contact with the Sonic line and could not do so, then they would telephone the Appellant, or vice versa.

On 21 September 2023, the police attended the Appellant’s address. He was not present, so they went to a location where they believed he was known to frequent. It was the home of LM, who has since been sentenced for other drugs matters. Officers saw the Appellant leaving the flat of LM with another male. The police followed and there was a car chase. After ten minutes the car was stopped, and the Appellant was taken out from the rear passenger seat. Police searched the car and found £2,000 in cash from the door in the back where the Appellant had been sitting.

In interview the Appellant provided a prepared statement in which he denied possession of criminal property and any involvement in the drug line. He then declined to comment to all further questions asked.

By the time of the sentencing hearing, the Appellant had been in custody since 21 September 2023. He had seven convictions for 12 offences between 26 July 2012 and 13 June 2023. These included possession of a Class B controlled drug in 2013, possession of a Class A controlled drug in 2022, and obstructing the exercise of a section 23A power to detain or search a person or a vehicle regarding drugs in 2023. Of more significance for the present appeal, the Appellant had been sentenced on 19 December 2014 to an extended sentence of 12 years, comprising eight years’ imprisonment with an extended licence period of four years, for an offence of manslaughter, for which he was recalled following the current offences.

The Appellant had provided a basis of plea, dated 20 March 2024. In it the Appellant stated:

The prosecution did not accept the Appellant’s basis of plea. In their sentencing note for the hearing, the prosecution did accept that the Appellant’s involvement in the drugs line had been for a limited period. Nevertheless, the prosecution maintained that he played a “significant role”. The prosecution relied upon the following:

At the sentencing hearing, and in their sentencing note, the prosecution addressed the relevant sentencing guidelines. In relation to the drugs offences, the prosecution submitted that the offending fell into category 3, street supply. As to the role of the Appellant, the transcript records that at the hearing the prosecution submitted:

“I do not think there is much between the prosecution and the defence because, essentially, he is either significant role but for a shorter period of time, or high level lesser role, which puts him in the range of a starting point of four and a half years, with a range of three and a half to seven years.”

In terms of personal mitigation, the Appellant had mental health issues. A letter from a psychologist confirmed that the Appellant had been assessed as presenting with symptoms of trauma, depression and anxiety. He was also assessed to have symptoms of ADHD and was reported to have demonstrated a strong commitment and motivation to address his mental health issues.

The Appellant had sent a personal letter to the judge expressing remorse and explaining that when he had been released from his manslaughter sentence, he had found life back in the community to be particularly challenging because of his mental health issues.

In passing sentence, the judge treated the Appellant as having had a “significant role”, which gave a starting point of four and a half years’ imprisonment. However, the judge identified what he found to be two important mitigating factors: first, that the Appellant had controlled the drugs line for a short period of time; and second, that the effect of the Appellant’s recall to serve the balance of his manslaughter sentence meant that the period that he had spent on remand awaiting sentence would not count towards any sentence.

The judge recognised that the fact that the offences were committed during the period of licence was an aggravating feature. Having taken into account those matters, the judge reduced the sentence, before credit for the guilty plea, by 12 months. With 25% credit for the guilty plea at the plea and trial preparation hearing, the resulting sentence imposed by the judge was 31 months’ imprisonment.

On behalf of the Appellant, Mr Kimsey submits that the judge took too high a starting point on the sentencing guidelines. He argues that the prosecution and defence were agreed that the Appellant was on the borderline of “significant” and “lesser” role, and that the judge failed to reflect that when he fixed the starting point.

The judge’s sentencing remarks are short and do not explain the process by which he arrived at the final sentence. He could have done more to explain how he calculated the sentence eventually imposed, before he applied the discount for the guilty plea. However, we are not persuaded that the sentence imposed by the judge was manifestly excessive or wrong in principle.

When applying the sentencing guidelines in an offence of this type, the judge is required to assess the role played by the defendant. That is separate from the period for which the defendant played that role. Whilst that is a relevant factor for sentencing, it is not relevant to the categorisation of the role.

Here the Appellant was, albeit for a limited period, concerned in the street supply of Class A drugs. As the prosecution rightly submitted in its original sentencing note, the Appellant did not have a “lesser” role. Whether or not the Appellant was personally the one who actually sent out the bulk text messages on 8 September 2023, he was, as is accepted, closely connected with the operation of the drugs line that day and must have had an awareness of the scale of the operation, which later that day included him travelling down to Bournemouth. His role on 8 September 2023 did not entail simply looking after the drugs line phone and giving pick-up directions. The Appellant was also in possession of £2,000, which undermined the suggestion that he played a “lesser” role.

Stepping back, we consider that the judge made an appropriate reduction of 12 months from the starting point. The sentence could have been expressed in different ways, but the real question is whether the sentence ultimately imposed was manifestly excessive.

The judge did not make express reference to the particular mitigation that had been relied upon, but such mitigation as there was available to the Appellant we consider was properly reflected in the reduction of 12 months made by the judge from the starting point.

Overall, the sentence was neither manifestly excessive nor wrong in principle. Accordingly, the appeal is dismissed.