R v Mohammed Jakir Hussain

Mohammed Jakir Hussain appeals, with leave, his sentence imposed in the Crown Court at Snaresbrook by Mr Recorder Barnett on 28 June 2024. The appellant is now aged 30.

On 6 April 2023 he pleaded guilty to an offence of being concerned in the supply of a controlled drug of Class A. On 10 April 2024, he was convicted of two further offences of being concerned in the supply of a controlled drug of Class A (Counts 1 and 2 on the trial Indictment) and of being concerned in the supply of a controlled drug of Class B (Count 5 on the trial Indictment). He was also convicted of conspiracy to supply a controlled drug of Class A (Count 7) and conspiracy to convey prohibited articles into a prison (Count 8 on the trial Indictment).

On 28 June 2024, the appellant was sentenced by the Recorder to 22 years’ imprisonment. That sentence was comprised of the following sentences. On the first offence of being concerned in the supply of a controlled drug of Class A, to which he pleaded guilty, a sentence of 4 years’ imprisonment; on Counts 1 and 2 of the trial indictment, the sentence of 17 years’ imprisonment on each count concurrently with each other and with the first offence; on Count 5, a concurrent sentence of 2 years’ imprisonment; on Count 7, 5 years’ imprisonment concurrently; on Count 8, a consecutive sentence of 5 years’ imprisonment. Consequential orders were made in respect of any outstanding offences on the indictment, the details of which should not concern the issues in this appeal.

No complaint is made on behalf of the appellant to the sentences on Counts 1, 2, 5 and 7 and the drug offences to which the appellant had previously pleaded guilty. Those sentences were all ordered to be served concurrently, amounting to the 17 years’ sentence of imprisonment. The single issue within this appeal concerns a consecutive sentence of 5 years’ imprisonment on Count 8.

It is necessary only to refer briefly to the earlier offences in respect of which no appeal is being pursued. On 11 November 2020, the police stopped a vehicle which contained the appellant during the course of a search for drugs. None were found in the car. However, a large quantity of cash and multiple phones were recovered. After forensic interrogation of the phones, evidence of illegal drug supply was obtained, which involved the appellant between 10 September and 11 November 2020.

On 13 October 2021, the police arrested the appellant and, upon searching his home, more mobile telephones were recovered. One of those phones revealed significant evidence indicating that the appellant was the operator of that phone and that he had been involved in the supply of both Class A and B drugs. The retrieved messages showed the appellant discussing the supply of Class A drugs measured in kilos, with one particular transaction in March 2021 involving £42,000 for a single kilo of cocaine. The phone also revealed a list of names of people supplied with cocaine and heroin from an initial stock of 40 kilograms of each drug being a total of 80 kilograms of Class A drugs. This comprised the evidence in respect of Counts 1 and 2 on the Indictment. There was also reference to the supply of cannabis which comprised Count 5 on the Indictment. The recovered mobile phone also confirmed that the appellant had been part of a wholesale supply of heroin between March 2020 and June 2022, with various other users of an EncroChat device. Whilst the appellant did not himself have an EncroChat handle, he was referred by others in such detail that it was obvious that the appellant was part of the conspiracy. The evidence comprised Count 7 of the Indictment.

Count 8 requires a little more detail given that it is the subject of this appeal. The appellant’s conviction was for conspiracy to convey prohibited articles within List A of section 40B of the Prison Act 1952. Evidence of this offence was obtained from a mobile phone recovered from the appellant’s home on his arrest on 13 October 2021. It revealed attempts to deliver drugs into HMP Gartree on three occasions. The appellant was in regular contact with an inmate who was using a mobile device illegally from within the prison. The appellant, together with the inmate, played a leading role in the offence.

On 23 February 2021, the appellant agreed to throw items over the wall of the prison after being given precise details of where to park his vehicle and the position into which he needed to throw the items being conveyed. The attempt was unsuccessful. The second attempt took place on 31 March 2021, this time involving the use of a drone. The appellant and the inmate discussed test flights and used internet searches to research the payload and how to modify the device to make less noise when being used to deliver drugs into the prison. This attempt was also unsuccessful.

The final attempt was on 17 April 2021, where further detailed conversations as to the arrangements, which included discussions as to the need to test flights and the routine of prison guards. This attempt also failed but led to a decision to obtain a better quality drone for any future attempts. Before those could occur the appellant was arrested. It was a reasonable and safe inference that this conspiracy involved the attempt to convey into prison significant quantities of illegal drugs.

After imposing sentences of 17 years’ imprisonment upon the other offences, the Recorder correctly identified that there was no specific guideline for this offence but that it was necessary to refer to the Drugs Guideline given that the offence involved a supply of drugs to another. The sentence of 5 years’ imprisonment after conviction by the jury was imposed and was ordered to be served consecutively given that this was an offence involving drug supply into a prison. The Recorder also expressly took into account the need to impose a proportionate sentence given how many offences the appellant had committed. In doing so, the sentence of 17 years’ imprisonment was taken as the lead sentence to which the other drugs offences were made to be served concurrently. Further, the Recorder stated that the sentence of 5 years’ imprisonment on Count 8 was a lower sentence than would have been imposed had that offence been sentenced on its own. In reaching that sentence, the Recorder concluded that the appellant had played a leading role in the offence and, in the absence of any evidence as to the quantities, it appears that the Recorder must have concluded that harm fell within Category 3, the drugs being both Class A and Class B.

The Recorder also took into account the statement of William McNamara, a security custodial manager at HMP Gartree, which explained the very problem of drone sightings being used across the prison estate nationally to convey drugs and other items into prison. That evidence included the following:

“In 2022 drone sightings were reported at 63 prisons in England and Wales, an increase from 49 prisons in 2021. This provides evidence of a growing threat to prisons from drones and subsequently required increase resources and expense in attempting to mitigate the threat. Drones are capable of bringing many illicit items into the prison estate, in particular mobiles and drugs.”

The Recorder relied upon this evidence as an established prison community impact.

On behalf of the appellant Mr Gardener, for whose submissions we are grateful, has focused on the sentence in respect of Count 8 only, whilst accepting that the remaining sentences cannot be criticised. He submits that the 5-year sentence for Count 8 was excessive, alternatively that the Recorder failed to give sufficient weight to the principle of totality of sentencing whilst imposing a consecutive term of 5 years to the 17-year sentence of imprisonment imposed on the remaining counts. Mr Gardener seeks to refer to one of the decisions of this Court to provide a sentencing context for offences under the Prison Act. However, with respect to Mr Gardener, we are not assisted by those earlier decisions which are entirely fact-specific and do not include any decision of guidance or principle. Essentially this appeal concerns the question as to whether the sentence of 5 years’ imprisonment, to be served consecutively to a 17-year term, was excessive. Mr Gardener argues that it was and invites the Court to reduce that sentence.

We must first ask ourselves whether a sentence of 5 years’ imprisonment after conviction was either excessive or wrong in principle. The Recorder correctly relied upon the Drugs Supply Guideline, having determined that the appellant played a leading role. Given that the precise quantity of drugs is unknown, category 3 harm is the appropriate assessment. For Class A drugs the starting point for sentence is 8½ years’ imprisonment whilst for Class B drugs it is 4 years’ imprisonment. The aggravating factors of seriousness included sophisticated methods and technology used in order to avoid detection. There were three attempts to convey the drugs into prison although the first was not with the use of a drone and the evidence of the use of drones across the country to convey drugs into prison; in mitigation the attempts to convey the drugs failed.

In sentencing appellant to 5 years’ imprisonment it is clear to us that the Recorder correctly adopted the lower starting point as for Class B drugs and allowed to the aggravating factors and those which mitigated to adjust the sentence from the 4-year starting point. It is important to recognise that the drugs are most unlikeCy to have been merely Class B drugs, given the appellant’s other offending involving Class A drugs. In our judgment, the sentence of 5 years for this offence cannot be criticised. Accordingly, we are not persuaded that the sentence of 5 years’ imprisonment is of itself excessive. We are also satisfied that it was appropriate to make this sentence consecutive to the others. Although it is argued on behalf of the appellant within the grounds of appeal that the supply or attempt to supply drugs into prison is similar to the other offending by the appellant, we disagree. Mr Gardener, in fairness, accepted this principle in the course of oral submissions. The illicit supply of drugs into prisons is in a wholly different category of drugs supply offending than street dealing. It was necessary, in our view, to impose a consecutive sentence.

We remain unpersuaded also by the argument that the Recorder failed to give sufficient weight to totality when sentencing, when imposing a 5-year sentence consecutive. It is clear from the sentencing remarks of the Recorder that he made Count 7 concurrent rather than consecutive to reflect totality. The Recorder was not required to address each and every sentence for totality but, taking into account totality, once the full sentence had been arrived at it was plain that the Recorder did this.

Accordingly, we do not find that the sentence imposed on the appellant was excessive or that it was wrong in principle. Therefore, we must dismiss this appeal.