No: 2008/6474/A6 
Neutral Citation Number: [2009] EWCA Crim 1413
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 24 June 2009
 
B e f o r e:

LORD JUSTICE THOMAS 
MR JUSTICE PENRY‑DAVEY 
 
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)  
- - - - - - - - - - - - -
R E G I N A 

v 

WASIM RAZA
 
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr P Andrews appeared on behalf of the Appellant
Miss R Goode appeared on behalf of the Crown
- - - - - - - - - - - - -
J U D G M E N T
1.	JUDGE RADFORD:  On 9th October 2008 in the Crown Court at Preston, the appellant was convicted by the jury who tried him of three counts on a consolidated indictment.  On 6th November 2008 he was sentenced by the trial judge, Her Honour Judge Badley in respect of those three offences.  On count 3 he was convicted by the jury of possessing a prohibited firearm and sentenced to five years' imprisonment.  On count 4, for possessing ammunition without a firearms certificate, he received two years' imprisonment to run concurrently with the first sentence and on count 5, for possessing a controlled drug of class A (cocaine) with intent, eight years' imprisonment to run consecutively, making a total of 13 years' imprisonment.  An order under section 240 of the 2003 Act was made in respect of the 170 days spent in custody on remand.
2.	The facts of the offences can be shortly stated.  Just before 9 o'clock in the morning on 22nd May 2007, police officers executed a search warrant at the appellant's home address in Blackburn.  They were looking for stolen electrical goods.  They found a set of vehicle keys for a Mercedes van.  The appellant said he had recently owned the Mercedes but had sold it weeks ago.  He appeared to the searching officers to be nervous and evasive.  
3.	A Vauxhall vehicle belonging to the appellant was parked outside his address.  It too was searched by the police and a Sony Ericsson mobile phone was found inside.  The appellant was unable to give a satisfactory explanation as to why he was in possession of the phone and he was then duly arrested on suspicion of theft.  It is to be noted that a total of about £400 in cash was found on his person when he was searched.  
4.	The Mercedes van was soon located and the key found in the appellant's home was used to unlock it.  On examination the van was found to contain a large amount of cocaine, a significant amount of cash (in excess of £1,000) and the prohibited firearm and ammunition the subject matter of the counts on the indictment to which we have made reference.  
5.	The firearm was an Ekol and Voltran Tuna 8mm handgun.  It was designed to fire as a starting pistol, normally discharging blank calibre cartridges, but the blockage in the barrel had been removed and a sleeve inserted to support the ammunition.  Examination of the ammunition which was found revealed that the blank cartridge had been drilled into with a .22 air pellet inserted so that the blank was converted into a bullet.
6.	In all the total amount of cocaine found was 1,181.6 grams.  Approximately 60 small wraps of cocaine similar in appearance to those found in the appellant's home were seized from the vehicle.  Fingerprints of the appellant were found on the bags containing the wraps.  The bulk of the cocaine that was found was in a compressed kilo block of cocaine which was found on analysis to have a high purity level of 77 per cent.  Opinion evidence before the court at trial was to the effect that it was unlikely that this kilo block had been diluted since importation into the United Kingdom.  The rest of it, namely 131 packages in all, contained street level deals of cocaine at less than a gram.  The court heard that the street price for the cocaine was £50 a gram.  The street value therefore was in the region of £59,000 with a wholesale value of between £29,000 and £37,000.  One kilo of cocaine at about 75 per cent equated to 750 grams at 100 per cent.  Mr Andrews who appears today on behalf of the appellant in his advice on appeal and in submissions to this court has accepted that the total quantity in 100 per cent purity terms of the cocaine found overall was approximately 770 grams.  
7.	In interview the appellant made no comment to all material questions.  In his evidence at trial he denied knowingly possessing any of the drugs or the firearm or the ammunition.
8.	When he came to be sentenced the appellant was aged 48.  He had nine previous convictions for some 18 offences, mostly of dishonesty between the years 1982 and 2002.  In February 2002 he received a 12 month community rehabilitation order for possession of cannabis resin with intent to supply.  It is submitted to us that that offence was in respect of supplying to friends in small quantities and the seriousness of the offence can be gauged from the fact that a rehabilitation order was the disposal chosen by the court.  
9.	The learned sentencing judge had a pre‑sentence report before her when she came to sentence this appellant.  In the course of the report it is recorded that that the view of the writer was that the appellant had been influenced in his criminality by financial necessity.  It is said in the report that he recognised and acknowledged traits of impulsivity in his character and made a direct connection between this and the way he had become involved in a problematic situation and had sought to solve it expediently and without analysis of his deeper responsibilities.  The writer of the report made a comment that serious consequences were implicit in the possession of the weapon and the quantity of drugs involved.
10.	In sentencing the appellant, the learned judge stated that the jury had accepted that the appellant was in possession of the items found in the vehicle and had drawn the clear inference, from the amount and packaging of the drugs, that the appellant was a drug dealer.  The learned judge plainly and correctly stated that the case crossed the custody threshold and that there had to be substantial sentences of imprisonment.  The sentences she chose to pass, she made clear, were the shortest permitted by law which matched the seriousness of the appellant's offending and which took into account the mitigating factors in his case.  The learned judge commented that although the appellant had previous convictions, they were for nothing as serious as the matters falling for sentence on that occasion and he had no previous convictions for possession and use of firearms and the previous drug‑related offence, to which we have already drawn attention, was in her view a minor one.  The learned judge added that in the past the appellant had served no significant sentences.  We note though that he had previously served custodial sentences.
11.	In assessing the seriousness of the offence and the appropriate sentences, the learned judge considered the guideline case of R v Avis and made the comment that the firearm in the case was clearly connected to the evil trade of distribution of cocaine and the specific criminal intent of distribution backed by arms.  In dealing with the offence of possessing a prohibited firearm, the learned judge observed correctly that a sentence of at least five years' imprisonment was required by the Act of Parliament which makes that offence an offence, unless there were exceptional circumstances, of which she was of the opinion there were none and none have sought to be suggested before this court today.  Dealing with the seriousness of the offence of possession of cocaine, the learned judge referred to the sentencing guideline cases decided by this court, in particular the decision of this court in R v Aroyewumi and Aranguren [1995] 16 Cr.App.R (S) 211, and the more recent case following that Attorney General's References Nos 66 to 71 of 2006 [2006] EWCA Crim. 2777 in which the judgment of this court was given by the Vice President.  Having regard to those matters, the starting point the learned judge said that she had taken for the offence of possessing the cocaine with intent to supply was one of 10 years, but she reduced that sentence having regard to the principle of totality to eight years ‑‑ the learned judge commented that there was no reduction due to any plea of guilty.  Making consecutive the sentence of eight years to the five year sentence and passing a concurrent sentence of two years for the possession of ammunition, the learned judge stated the total sentence would be 13 years' imprisonment.
12.	In grounds of appeal settled by learned counsel, Mr Andrews who has appeared today for this appellant, it has been contended that the eight year sentence for the offence of possessing cocaine with intent to supply was unduly harsh and manifestly excessive.  In developing that submission before us, it is Mr Andrews' submission that the learned judge took too high a starting point, namely a 10 year starting point, which she did, in assessing the appropriate sentence, before then considering a reduction overall having regard to the principle of totality.  It is contended in the advice and grounds, and Mr Andrews again developed his submission further orally, that in assessing the starting point the learned judge failed to make any proper allowance for the particular circumstances in which the offence came to be committed and there was a lack of evidence that the appellant was an organiser of drug distribution and there was no evidence of previous drug dealing and no evidence of the use of couriers.  The point was made also that the appellant's age and personal circumstances were resonant in mitigation of the sentence.  Overall it is said that a manifestly excessive sentence was passed.  It was said in the grounds that is also so having regard to the principle of totality ‑‑ although before us Mr Andrews has accepted that a two year reduction on the grounds of totality for the sentence for the offence of possessing cocaine was not one that he seeks to persuade this court was inappropriate.  His submission before this court has concentrated on what he has argued was the unduly high starting point taken by the learned judge for the offence of possession of cocaine with intent in itself.  
13.	In granting leave to appeal the sentences, the full court in its judgment expressed the view that as a matter of principle consideration should be given by a constitution of this court, following full argument, as to the extent to which the totality principle should apply in a case where the sentencing judge has to impose a five year minimum custodial sentence for possession of a prohibited firearm as prescribed by Parliament in respect of one of the offences for which sentence was to be passed on the same occasion.  In relation to this appeal, we observe there is no suggestion that the learned judge fell into error in imposing the minimum sentence of five years' imprisonment.  There is no suggestion that there were any exceptional circumstances and we note that the same statutory minimum sentence would have applied even if, as was not the case, the appellant had pleaded guilty; so no greater sentence was imposed because of his having contested the count on the indictment.  It is not either suggested it was in any way wrong in principle for the judge to have passed a consecutive sentence for the offence of possession of cocaine with intent to supply.  
14.	We turn then to deal with what is the essential submission now made to this court as to the starting point taken by the learned judge for the offence of possessing cocaine with intent to supply, before considering the question of whether the learned judge was justified in adjusting that starting point in the way she did in terms of the application of the principle of totality.  We have considered the cases which the learned judge had regard to in the course of deciding what the appropriate starting point was.  We have found, as the learned judge found, that applying the approach endorsed by this court in the cases to which we have made reference earlier in this judgment, the starting point after a trial of 10 years' imprisonment for possession of cocaine weighing 500 grams or more at 100 per cent purity with intent to supply was the appropriate starting point for consideration of sentence in respect of that count.  We have noted already that the amount involved in this case was considerably more at 100 per cent purity than 500 grams.  The learned judge in our view was fully entitled to proceed to sentence the appellant on the basis that he was a commercial drug dealer.  Certainly there was evidence before the jury and the judge as to the possession not only of the pressed block of cocaine but other street deals which were clearly in contemplation.  There was evidence of the possession of money of not insignificant amounts and of course we add not without significance in that context also the possession of the firearm and the ammunition.  The appellant put forward no explanation to the jury that he was a mere custodian, or that his role was a one‑off involvement in the possession of class A drugs, or that he had no significant part to play in the organisation contemplated in the supply of these drugs to others.  We are entirely satisfied that the learned judge in taking a starting point of 10 years' imprisonment, before any discount, in no way can be described as taking a manifestly excessive starting point for such an offence; indeed clearly the learned judge had adjusted it from what might otherwise have been appropriate having taken into account no doubt the totality of the offences for which sentence had to be passed.  
15.	We turn to the matter which has led, and led only, to this appeal coming before this court and that is in respect of the principle of totality and its application to offences involving the possession of prohibited firearms where a mandatory minimum sentence is required to be passed by the sentencing judge.  In that regard, the decision of this court in the case of R v Baptiste [2007] EWCA Crim. 2772 has been drawn to this court's attention where, applying the principle a totality in a case which did involve the possession of drugs and the possession of a prohibited firearm, this court reduced on the factual matrix of that case sentences passed on an appellant with no previous convictions who had pleaded guilty to the drugs offence to a greater extent than they had been adjusted on the basis of totality by the sentencing judge in that case.  The authorities which were referred to in the judgment of this court in that case dealt with cases which did not involve, we note, any offence of possessing prohibited firearms but dealt with the need to pass consecutive sentences where firearms are carried when offences such as robbery were committed.  There is no need to cite those authorities in detail in this judgment.  
16.	In granting leave, the full court drew attention to the need, it observed, to respect the express wish of Parliament so as not to dilute the impact of the five year minimum sentence it has ordained by reducing the sentence for another offence for which sentence is to be passed on the same occasion in compliance with the principle of totality to take account of that mandatory sentence.  On the other hand, the court observed that there was a need to ensure that the total sentence to be passed on an offender is tailored to his or her degree of culpability.  
17.	In submissions to this court in writing on behalf of the Crown and on behalf of the appellant it is accepted, it seems to us, that the principle of totality does apply in a situation such as this case and does require a sentencing judge to consider whether the aggregate of consecutive sentences produces a total term which is disproportionate to the overall criminality of the appellant's conduct.  However, we agree with the submission made on behalf of the Crown in writing that in assessing the appropriate length of another custodial sentence for a different offence, one has to have regard in any adjustment for totality to the fact that Parliament has assessed the degree of culpability for possessing a prohibited firearm as requiring a mandatory minimum sentence of five years' imprisonment.  In our judgment therefore in a situation in which that is one of the sentences which the court has to pass, the principle of totality has to be applied in such a way that it does not undermine the will of Parliament by substantially reducing an otherwise appropriate consecutive sentence for another offence so as to render nugatory the effect of the mandatory minimum sentence for the firearms offence.  In this particular kind of case, before this court, involving offences of possession of drugs and possession of weapons clearly possessed in connection with drug supply and the protection of it, it is important in our view to ensure that any reduction on grounds of totality does not reduce the effect of properly deterrent and commensurate sentences for this combination of offences.  We have considered on the facts of this case the extent of the adjustment allowed for totality which the learned judge made, namely reducing the otherwise appropriate sentence in her judgment by two years from the starting point.  
18.	Before this court, in effect, learned counsel on behalf of the appellant, Mr Andrews, has not argued that a two year adjustment was inappropriate.  We do not feel in any way that the adjustment should have been any greater.  We note that the sentence for possessing the ammunition was made to run concurrently and that the minimum sentence passed was the same as that which would have been passed had the appellant pleaded guilty to that offence.  We also note, as we have indicated earlier in this judgment, that taking the starting point of 10 years' imprisonment the learned judge took the minimum starting point appropriate on the basis that the quantity of cocaine involved at 100 per cent purity was 500 grams, whereas it was in reality 770 grams.  
19.	For all those reasons we find the adjustment to the principle of totality that the learned judge made reflected the public policy considerations which no doubt she had in mind and reflected in particular the need not to make too great a reduction in a case where the court properly must pass for one of the other offences the mandatory minimum sentence for possession of a handgun.  For these reasons the appeal against sentence is dismissed.