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R v Talebi

Summary

1. LORD JUSTICE PITCHFORD: My Lord, HHJ Gilbert, will give the judgment of the court.

2. HIS HONOUR JUDGE GILBERT QC: On 20 June 2012 in the Crown Court at Maidstone, the appellant pleaded guilty to conspiracy to contravene section 170 of the Customs and Excise Management Act of 1979, contrary to section 1(1) of the Criminal Law Act 1977, and was sentenced on 16 July of this year to 10 years' imprisonment, with 154 days to count towards sentence under section 240 and section 240A of the Criminal Justice Act 2003. In addition, there were orders for forfeiture and destruction of the drugs and paraphernalia, and for forfeiture of £1,000 under section 27 of the Misuse of Drugs Act of 1971.

3. There were three co-accused. Abdul Kazemi, Saeid Shafiean and Haidar Maliky, who were all found not guilty.

4. The facts may be stated briefly. On 7 February 2012, Customs officers at Heathrow Airport intercepted a pair of boxes which contained cartons of china. Concealed within the china were sheets containing 3.92 kilograms of opium. The boxes were addressed to a man called Kiss at an address in North West London, which was a Council property occupied by Shafiean, but Kiss had been the previous occupant. The opium was extracted from the cartons and a controlled delivery of the china was made to the address. Shafiean received the boxes and then contacted Kazemi, who took them to an address in Chelsea where the appellant received them. He was with Maliky. As they prepared to take the boxes upstairs to the flat, officers intervened and they were arrested. An investigation into the offence revealed that the appellant had played a leading role in the importation. He had made a number of calls to Iran, where the boxes came from, in the days running up to and on the day of dispatch from Iran. He had travelled to Iran in January. His flat was searched and a set of scales with traces of opium on them was recovered, as well as £1,000 in cash. When interviewed, the appellant said he thought the boxes contained antiques.

5. In February 2011, a smaller quantity of opium had been imported in handbags and the destination was the same address.

6. At the date of sentence the appellant was aged 40 and had no previous convictions. In passing sentence, the sentencing judge stated that this was a conspiracy to import opium. Account was taken of the Sentencing Guidelines. The appellant had been in touch with the original suppliers in Turkey and Iran and was at the end point after the drugs arrived in this country. There were two importations involving significant amounts of opium. This was at the top end of a category 2 offence. The only mitigating factors were the plea and good character.

7. The grounds of appeal are that the quantity of opium imported and the level and sophistication of the conspiracy did not warrant a sentence of 10 years' imprisonment following a plea.

8. In support of these grounds, counsel referred in the written grounds to R v Avazi and others [2007] EWCA Crim 3443 and the case of R v Mashaollahi [2001] 1 Cr App R (S) 6. In addition, the single judge, Royce J, referred to the case of R v Hama-Amin [2011] EWCA Crim 2836 and R v Moustafar [2012] EWCA Crim 514. The first three of those cases were all heard at a time when the Sentencing Guidelines Council had given a specific guideline in relation to the importation of opium separate from that for the importation of heroin or cocaine. Although the case of Moustafar was heard in this court on 6 March of this year, shortly after the current definitive guideline for drugs offences issued by the Sentencing Council for all offenders who are sentenced on or after 27 February 2012, Moustafar had been sentenced on 5 April 2011, and his appeal was concerned with disparity in relation to the sentence of a co-accused, whose sentence had been reduced on appeal to this court on 3 November last year.

9. The new definitive guideline issued by the Sentencing Council which applies to adult offenders sentenced on or after 27 February of this year, as was the appellant, sets out a new method of calculating sentence involving a number of steps. Step 1 provides that the court should determine the offender's culpability by his role in the offending, that is: leading, significant or lesser; and secondly, the category of harm caused by his offending based upon quantity. Step 2 then provides a grid of sentencing starting points depending upon the class of drug, the category based on quantity, and the role of the offender, that is, leading, significant or lesser. Unfortunately, while the new guideline sets out categories of harm based on weight for heroin and cocaine, it is silent as to opium and therefore gives no specific guidance on how opium is to be categorised.

10. Applying the new guideline to opium, as we do, we note that step 2 provides that a defendant playing a leading role in respect of a category 1 category of harm, based upon 5 kilograms of heroin or cocaine being the weight of the product regardless of purity, attracts a starting point of 14 years' custody. When giving advice to the Court of Appeal, the Sentencing Advisory Panel's conclusion was, in paragraph 15 of the advice:

"15. We have concluded that, unless there is clear evidence in a particular case that a consignment of opium is intended for conversion into morphine or heroin, a sentencing guideline for the importation or possession of opium should be based on weight, cross-checked with street value to ensure that at least an appropriate equivalence with heroin and cocaine is maintained. For importation of opium, the appropriate guideline would be:

* 14 years and upwards for a consignment of 40 kilos or more of opium;

* 10 years and upwards for a consignment of 4 kilos or more of opium."

16. In line with the sentencing guidelines for other Class A drugs, an appropriate adjustment should be made to the sentence to take account of relative drug purity."

11. It is of interest when considering that conclusion in the case of Mashaollahi that the court stated that it appeared that, weight for weight, the street value of heroin was approximately 8 times more than that of opium. Furthermore, the court in Mashaollahi stated that, for the purposes of sentence, a consignment of 40 kilograms of opium at 100 per cent purity would be the equivalent of 5 kilograms of heroin at 100 per cent purity, the importation of which, under the then current sentencing guideline, attracted a sentence of 14 years and upwards in a contested case.

12. We therefore conclude that when categorising opium by weight for the purposes of the new guideline, we should work on the assumption that 1 kilogram of heroin is equivalent to 8 kilograms of opium. Applying that assumption to the facts of this case, the appellant fell to be sentenced for the conspiracy to import opium. His role was held by Judge Carroll to be a leading role, with which we agree.

13. As for quantity, Judge Carroll found as a fact that the conspiracy involved two importations. The importations led to the appellant's arrest, involving 3.92 kilograms of opium, and another importation 12 months previously of an unknown but smaller quantity in handbags to the same address.

14. We therefore place this case as a category 2 importation, which attracts a starting point of 11 years on a not guilty plea to a single importation of 1 kilogram of heroin or 8 kilograms of opium. We bear in mind that the quantity involved in the importations the subject of the conspiracy was less than 8 kilograms, but there were two importations and so we start at 11 years.

15. Applying a 25 per cent discount for pleading guilty, as did the sentencing judge, we conclude, therefore, that the correct sentence is one of 8 years. We therefore quash the sentence of 10 years as being manifestly excessive and replace it with a sentence of 8 years. The other orders will stand.

16. MR HORSTEAD: My Lords, just one further matter. The defendant is privately instructed in this case, and in the light of the judgment, may I make an application, please, for a defendant's costs order?

17. LORD JUSTICE PITCHFORD: In what sum?

18. MR HORSTEAD: To be taxed in the usual way.

19. LORD JUSTICE PITCHFORD: I wonder if we can have some advice about that. Should we set the figure or should we simply say --

20. COURT ASSOCIATE: My Lord, counsel should come with a figure. It should not encompass any costs other than those that would normally be covered.

21. LORD JUSTICE PITCHFORD: We need to know what the figure is, please?

22. MR HORSTEAD: Yes, my instructing solicitor sits behind me. The figure is £4,000, to include --

23. LORD JUSTICE PITCHFORD: How much? £4,000?

24. MR HORSTEAD: That is to include the interpreter, and may I just take some further instructions? (Pause)

25. My Lord, the interpreter was for the purposes of the conference that was held with those instructing and the appellant in prison. The figure is that which I have put before the court, but of course I see the court's reaction and I would respectfully ask for a little time to be able to more accurately quantify that amount.

26. LORD JUSTICE PITCHFORD: You may submit an application for costs in writing, with an itemised bill and a justification for it. It should be brought to my attention.

27. MR HORSTEAD: I will ensure that is the case.

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