Imran Sadiq Khan [2019] EWCA Crim 1305

Imran Sadiq Khan [2019] EWCA Crim 1305 was an appeal to the Court of Appeal (Criminal Division) before Lord Justice Irwin, Mr Justice Kerr and His Honour Judge Patrick Field QC against a sentence of two years and eight months’ imprisonment imposed for handling stolen goods.

The appellant had pleaded guilty on 21 January 2019 at Birmingham Crown Court to an offence contrary to section 22(1) of the Theft Act 1968. He was sentenced by Her Honour Judge Montgomery QC on 25 March 2019. A co-defendant, Edwin Geoff Gilbert, had pleaded guilty to the same offence and was sentenced to three years and two months’ imprisonment consecutive to a longer sentence for other offences. The appellant appealed by leave of the single judge.

The offence arose from police surveillance of the appellant for an unrelated matter in early 2016. Officers observed him spending time at a unit under railway arches in a cul-de-sac beside a railway track, accessed by an unmarked door, which was used as a vehicle repair garage. On 12 February 2016 police executed a warrant and discovered the shell of a car that had the appearance of being worked on, together with a considerable number of car parts including tyres, doors, engines, gearboxes and cutting tools. The police found no evidence of a legitimate business. The appellant and Mr Gilbert were inside and were arrested. A vehicle examiner traced all the parts to particular vehicles. The various parts had come from sixteen vehicles stolen between November 2014 and February 2016. The stolen cars from which the parts had been removed represented approximately £136,000 in value. In at least one instance a car had been obtained by robbery, the driver having been torn from the car seat during the theft. The car parts were valued at around £13,000.

In interview the appellant provided a prepared statement in which he said he had worked at the unit and had been paid £250 a week to work on engines and gearboxes. He denied knowledge that the vehicles were stolen. He answered “no comment” to questions in that and a subsequent interview, save that in the second interview he said “I ask no questions, tell no lies. I don’t answer no questions”. He acknowledged that he occasionally held keys to the unit. The appellant had nine convictions on six dates, including a significant conviction for conspiracy to handle stolen goods (namely stolen car parts) for which he had been sentenced to thirty months’ imprisonment on 6 December 2013. It was clear that within little more than a year after the expiry of that sentence his engagement with the present offending must have begun.

A basis of plea was advanced and accepted by the Crown. The appellant did not rent or acquire the unit; that had been done by another man. A number of people were involved with and had access to the unit. The Crown had no evidence to contradict that the appellant brought no stolen vehicles or parts to the unit and that he was employed to go there from time to time beginning in November 2015, not earlier. He was never told the parts were stolen, although he must have realised it. The Crown submitted that common sense inference, particularly given the appellant’s background, was that the realisation cannot have been long in emerging. The car parts were all used. There was no evidence that the appellant handled any intact vehicles, but the Crown submitted it was inconceivable that at least some of the stolen vehicles would not have been cut up on site given the presence of cutting tools. The Crown did not challenge the valuation of £13,000 or the level of payment the appellant received.

A pre-sentence report recorded that the appellant denied knowledge that the parts were stolen, a point belied by his subsequent plea. He told the probation officer he was working one to two days a week, making the remuneration above the level to be expected from legitimate work. He supported his current wife and child and his former wife and two children. He was assessed as having a very high likelihood of re-conviction within two years but would comply with any community penalty if appropriate. The appellant also had the benefit of a character reference from his brother.

In passing sentence the judge indicated she would give ten per cent credit for a late plea of guilty. She concluded that this was a sophisticated and professional operation for theft, handling and reuse of cars and parts. The basis of plea was accepted and therefore the appellant fell to be sentenced as a hired hand, albeit inevitably a knowledgeable and experienced one. The judge considered the Sentencing Council Definitive Guideline for offences of handling stolen goods. She stated that the offence fell more comfortably into category A, being undoubtedly professional and sophisticated and operating over a period of time. She acknowledged that in assessing the right starting point she must look to the appellant’s specific function in relation to the unit and that by his basis of plea he had reduced his responsibility, falling to be sentenced at a marginally lower level of culpability than his co-accused. She accepted that in category two, as culpability A to B determines, the starting point must be measured by the value of the goods, which was well towards the bottom end of the table. She took the view that having considered the guideline with care, and most specifically the aggravating features and the appellant’s position before the court in terms of his responsibility, both defendants had committed offences so serious that only an immediate custodial sentence could suffice. She indicated that the only real mitigation was the guilty plea. In relation to this appellant she said the offence was professional and sophisticated and fell more comfortably into the top category, but she had taken account of his role as detailed in the basis of plea and reduced what she would otherwise have thought the appropriate sentence accordingly. She was bound to reflect his relevant previous conviction. The sentence would have been one of three years’ imprisonment, reduced by the guilty plea to two years and eight months.

Mr Singh on behalf of the appellant submitted that the case was a category two case with culpability B, so that as a hired hand the starting point of twelve months in the middle of the range of twenty-six weeks to eighteen months was appropriate. He accepted there was some aggravation from the number of vehicles, that at least one was taken from a domestic burglary, and from the previous convictions. He advanced mitigation consisting of interlocking factors. There had been very considerable delay of around three years between arrest in February 2016 and sentence, much of it the fault of the Crown. There had been disclosure problems; at one stage the appellant was told he would not be proceeded against, and proceedings were restarted following resolution of those problems. During that period the appellant had begun his life again, starting a legitimate business and restarting his family life. His father had died and he had responsibilities in relation to his mother and a sister with particular needs, and he had not re-offended. All of those matters should have sounded in mitigation, but the judge indicated that the only mitigation was for the plea.

The Court of Appeal considered those submissions with care. The court re-analysed the offending. Beginning with harm, this was a category one case. The value was within the high value category (more than £10,000) and there was undoubtedly significant additional harm to victims or others, the particular instance being the robbery which gave rise to possession of one of the cars. Mr Singh acknowledged that the handler takes the risk of the harm that has been caused to obtain the stolen goods with which he deals. The culpability was capable of being high culpability, being a professional and sophisticated offence, although the role filled by this appellant was as a hired hand. That was accepted and therefore must be the faithful basis of sentence. His background was of someone who had done this professionally before. Making some allowance for those two factors on culpability, it seemed to the court that a starting point of three years was entirely appropriate. The aggravating features were bound to be brought to bear. The court considered that the judge, had she only been drawn to mitigate the sentence by reference to plea, would have been fully entitled to pass the sentence which she did. However, the court thought there was force in the submission that she gave no reduction for the personal mitigation consisting of very considerable delay not the fault of the appellant and the fact that he had not re-offended for a period and had very considerable genuine responsibilities.

The Court of Appeal quashed the sentence and substituted a sentence of two years and two months’ imprisonment for the sentence of two years and eight months passed by the judge. In short, the appeal succeeded to the extent that a modest reduction was made to reflect personal mitigation which the sentencing judge had failed to take into account.