R v Amir Mir

The appellant appeals with limited leave against the imposition of a custodial term of 12 years for the following offending:

In summary the background is as follows.

The appellant was sentenced for his part in an organised crime group between 1 March 2020 to 30 June 2020 in relation to conspiracy to source, acquire and supply onwards Class A drugs (cocaine and heroin), as well as for laundering the money generated by the activities.

The appellant held an EncroChat encrypted phone for his activities and the entirety of the evidence against him came from the Encrochat messages. It was not possible from the messages to identify the precise extent of the physical supply, but there was evidence of the supply of both cocaine and heroin in kilo blocks and there was evidence of the collection of money in £10,000 increments.

The appellant was arrested on 10 March 2021, and his home address was searched. No evidence of the involvement in drug supply was discovered during the search.

The Better Case Management form on the Digital Case System indicates the appellant did not indicate a plea in the Magistrates' Court and pleaded later at the PTPH in the Crown Court.

Although a basis of plea and response had been uploaded to the Digital Case System in 2021, it was not pursued by the time of the sentencing hearing. It was accepted by the parties at sentence that the sentencing judge had presided over the trial of an acquitted co-conspirator and was, therefore, well placed to assess the defendant's overall role.

The judge said that the EncroChat exchanges demonstrated the appellant was involved with

“a well-established drug trafficking operation, and your criminal association with others who were involved in high level commercial class A drug dealing, and the laundering of the proceeds of that drug dealing. The communications demonstrate the buying and selling of kilogram amounts – that is wholesale amounts – of heroin and cocaine”.

The judge attributed a lower end leading role to the appellant, whose actions he described as:

Albeit a broker or middleman, his role was described by the judge as “extensive”, when stating

“You tasked others to deliver drugs. Those deliveries were in wholesale kilogram amounts. You arranged this. You arranged the collection of money. Indeed, Rypalm handled money connected with drug trafficking at your request and direction.”

The judge noted that when there was an underweight delivery the appellant had the freedom of action to negotiate a price. The EncroChat messages showed contact with another user of the EncroChat system in relation to drugs supplied in the Netherlands.

Drawing these matters together, the judge concluded that the appellant had organised buying and selling on a commercial scale, had substantial links and influence on others in the chain and links to the original source, but, as a broker, albeit an active one, he was towards the lower end of the leading role category. The judge concluded that at least 5 kgs of each drug was trafficked. It was virtually a full-time business for the appellant for the period of the conspiracy.

He identified the following aggravating features. The defendant had convictions from January 2000 for possession with intent to supply Class A drugs (heroin and cocaine), albeit of some age. He identified as a significant aggravating feature the sophistication of the operation, using EncroChat to avoid detection, stating “I make it clear that this is not a factor which I took into account when selecting the starting point for these offences”.

In relation to the offence of conspiracy to acquire criminal property, he cited the appellant's leading role in the group activity, the significant planning required and performed over a substantial period of time, with an approximate financial level of £250,000. He did not increase the starting point for aggravating factors.

Mitigation common to all three counts included:

The judge allowed full credit for the defendant's guilty pleas “at what I regard is the earliest opportunity”.

The Judge sentenced the defendant in the following way on counts 1 and 2:

This resulted in a notional sentence on counts 1 and 2 of 8 years.

On count 4 (the acquisition of criminal property):

This resulted in a notional sentence on count 4 of 2 years.

The judge indicated that the sentence on all counts would be concurrent, but in order to reach a sentence that was appropriate for the totality of the offending, the sentence on count 1 would be increased to 12 years with an increase of 3 years to account for the offending in count 1 and an increase of 1 year to account for the offending in count 4. By virtue of this, the judge imposed a sentence on count 1 of 12 years' imprisonment as the total sentence.

The ground of appeal pursued before us relates to totality, in particular that the upward adjustment of the sentence imposed on count 1 to account for the offending in counts 2 and 4 was too great and manifestly excessive in the circumstances.

Before us it is submitted that the three counts reflected offending which arose from the same time period and the same course of conduct; the defendant was carrying out identical activities but in relation to two different types of Class A drugs rather than one; the money laundering was a necessary consequence of the fact that the defendant was involved in a conspiracy to supply Class A drugs at the level he was; and the mathematical way in which the calculation was made by the trial judge led to a sentence that was 50 percent of the sentence imposed on count 1. The effect of that adjustment was to negate not only the mitigation but also the reduction for a guilty plea.

We are grateful to Ms Osbourne KC for her clear, succinct and responsive submissions.

There are different ways, we accept, in which to structure this sentence, as Ms Osborne sought to submit. However the ground of appeal requires us to focus on totality. The Guideline on Totality states that:

“when sentencing for more than one offence, the overriding principle of totality is that the overall sentence should:

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reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relevant to the offences and those personal to the offender; and

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be just and proportionate.

If a concurrent sentence is imposed, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required and may have the effect of going outside the category range appropriate for a single offence.”

Applying this guidance, as we must do, and stepping back to consider the totality of the offending, we reach the following assessment. This was sophisticated EncroChat offending, involving two different Class A drugs and, on the judge's finding, at least 10 kg of drugs. The conspiracy was only brought to an end by arrest. The level of the appellant's involvement in the drug trafficking is apparent from his involvement in laundering the proceeds and employing others to collect the money, which forms the subject of count 4.

In our view the judge would have been justified in rejecting the submission that the role was low-end leading role and instead adopted a starting point of 14 years for each of counts 1 and 2, given his findings that the appellant organised buying and selling on a commercial scale and had substantial links and influence on others in the chain. In addition, we take the view that the judge was generous in allowing a third discount for plea, given there was no plea or indication of plea in the Magistrates' Courts. It follows that stepping back and assessing the totality of the offending, for the reasons we have given, it cannot be said that a term of 18 years before plea for this offending could be considered to be manifestly excessive.

Accordingly, the appeal is dismissed.