Paloko, Tzourtzi & Hasa [2019] EWCA Crim 1727

**R v Paloko, Tzourtzi & Hasa** [2019] EWCA Crim 1727 concerned appeals against sentence by three men convicted of affray and firearms offences following a planned attempt to steal drugs from a property in Doncaster, in the course of which a loaded handgun, an imitation firearm and multiple other weapons were deployed; the Court of Appeal, Criminal Division (Lord Justice Flaux, Mr Justice Jay and Mr Justice Julian Knowles) allowed the appeal of the first appellant in part but dismissed the appeals of the second and third appellants.

On 15th November 2018 Mr Paloko, Mr Tzourtzi and Mr Hasa had pleaded guilty before His Honour Judge Richardson at Sheffield Crown Court to various offences. On 25th January 2019 His Honour Judge Dixon sentenced them as follows. Mr Paloko received two years’ imprisonment for affray (count 1) and nine months’ imprisonment for having an offensive weapon (count 5), both concurrent with an extended sentence on count 2 (possessing an imitation firearm with intent to cause fear of violence) of nine years’ imprisonment (five years’ custody with a four-year extended licence period). Those sentences were all ordered to run concurrently with one another, but consecutively to them Mr Paloko received six years’ imprisonment on count 6 for possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968. Mr Tzourtzi was sentenced to two years’ imprisonment for affray (count 1) and nine months’ imprisonment for having an offensive weapon (count 4), both concurrent with an extended sentence on count 2 of seven years (five years’ custody with a two-year extended licence period). Mr Hasa, who had pleaded guilty only to counts 1 and 2, received the same sentences on those counts as Mr Tzourtzi. Mr Paloko had entered a basis of plea to the effect that he alone was in possession of the live handgun and that the other two appellants were unaware of it; accordingly, no evidence was offered against Mr Tzourtzi and Mr Hasa on count 6 and not guilty verdicts were entered pursuant to section 17 of the Criminal Justice Act 1967. All three appellants appealed against sentence with leave of the single judge.

The three appellants had travelled from London to Yorkshire for the purpose of stealing drugs and had stayed in a hotel in Huddersfield from 3rd June 2018. Over the consecutive nights of 8th and 9th June they travelled to an address in Elicia Avenue, Doncaster, intending to commit an offence. At approximately 3.15am on 8th June the householder, Mr Dennis Russo, was woken by a noise and saw a masked male crouched on the flat roof of a single-storey extension to the rear of the property. The man tried to enter through a rear bedroom but Mr Russo held the door handle shut. The man then left. Mr Russo went outside and saw three men, including the man on the roof, drive away slowly in a red Volvo. There was no charge on the indictment relating to the events of 8th June, but they formed part of the explanatory background. Concerned by what had occurred, Mr Russo arranged for his family to stay elsewhere and for his brother, Mr Marik Russo, to stay with him. At 1am on 9th June Mr Dennis Russo saw someone looking at his house from a nearby alleyway. He and his brother, both armed with baseball bats, went to investigate. Mr Russo recognised the man from the previous night. As they approached, the man pulled a camouflage scarf around his face. When Mr Russo asked why he had come to the house, reference was made to Albanian and to “weed”. Soon afterwards the red Volvo pulled up. The driver, armed with a large black knife, got out. Another man, wearing a full face mask and holding what appeared to be a black handgun, left the vehicle from the rear passenger seat. Both Russo brothers were disarmed, and Mr Marik Russo was head-butted by the man holding the knife. The three men got back into the car, but two of them then tried unsuccessfully to enter Mr Russo’s house through the front door. All three then left in the Volvo. Mr Dennis Russo called the police at 1.46am. Within minutes the Volvo’s movements were being tracked by the Automatic Number Plate Recognition system. At 2.35am armed officers from West Yorkshire Police arrested the three appellants after they pulled into a petrol station on Wakefield Road. Mr Tzourtzi was the driver, Mr Paloko was in the front passenger seat, and Mr Hasa was seated in the rear. During an initial search of the Volvo, police officers found a black gas-powered handgun that was a replica of a Beretta semi-automatic handgun, a large hunting knife, three balaclavas and two baseball bats which had been taken from the Russo brothers. Mr Paloko was found to be in possession of a knuckleduster and a camouflage snood. Mr Tzourtzi had a small fixed-bladed knife in a bag he had been carrying. The knuckleduster and small blade had not been produced during the confrontation with the Russo brothers. Mr Paloko declined to comment during his police interview. Because no interpreters were available for Mr Tzourtzi and Mr Hasa, they were not interviewed. On 18th June 2018 the police conducted a more thorough search of the Volvo. A working handgun, loaded with five rounds in the magazine, was found pushed down between the rear seat and the backrest. A round tip matching those from the magazine was also recovered from the car’s back seat. Other items recovered from the car included a black holdall, black heavy-duty gloves, heavy-duty duct tape, six screwdrivers, an expandable baton and another knuckleduster.

Mr Paloko was aged 24 at the time of sentence and had six convictions for ten offences between 2011 and 2017. Relevantly, in May 2011 he had been sentenced to four years’ detention in a young offender institution for offences of robbery and possession of a firearm when committing an offence; in November 2012 to eight months’ detention in a young offender institution (consecutive to the earlier sentence) for assault occasioning actual bodily harm; and in September 2013 to two years’ detention in a young offender institution for possession of a Class A drug (crack cocaine) with intent to supply. Mr Tzourtzi was aged 24 at the time of sentence and had two convictions in 2017 for two offences of possession of Class A drugs (cocaine), for which he had been fined. Mr Hasa was aged 21 at the time of sentence and had no previous convictions in the United Kingdom. The judge had the benefit of a pre-sentence report for Mr Paloko. He had told the author of the report that the three of them had travelled to steal a large quantity of cannabis that they believed was being cultivated in the property adjacent to the victim’s home. The author’s opinion was that Mr Paloko’s offending was part of an entrenched criminal lifestyle linked to gang involvement and drug dealing. He was assessed as posing a high risk of harm to members of the public and criminal associates. He had exhibited reckless behaviour in the past and demonstrated a willingness to use instrumental violence. His specific gang affiliations were unknown, but several had been recorded on previous probation assessments. During the assessment concerns about his ability to cope in custody and his vulnerability due to threats from other gang members were identified. Mr Tzourtzi and Mr Hasa were sentenced without pre-sentence reports, but the single judge ordered pre-appeal reports for them both, which the court had before it.

The sentencing judge said that this had been a pre-planned and determined effort to carry out criminal activity. The appellants believed that they had information about a cannabis factory and had gone armed with the intention of taking what they could. On 8th June they had carried out a scouting trip. It was unclear whether they had intended to commit the offence that night and were frightened off. It was not until a number of days after their arrest that the prohibited firearm was discovered. Mr Paloko would be sentenced in accordance with his basis of plea. The judge said that in effect this had been an attempted aggravated burglary. It was a planned attempt to raid a property while armed with weapons, one of which had the appearance of being a lethal weapon. They had travelled from London to South Yorkshire for that purpose. The judge had considered the sentencing guideline for aggravated burglary as guidance regarding the general criminality. Under that guideline it would have been an offence of greater harm because the occupier was at home, violence was used, they had gone equipped, weapons were present, and it was a group offence. That would have placed it into category 1 in the guideline, which had a sentencing range of nine to thirteen years’ custody. The aggravating features would have moved it towards the top of that range. The relevant issues with regard to the imitation firearm and affray offences were that the appellants were in a public street late at night, the occupiers had been confronted with weapons, and it had been premeditated group offending. The judge determined that, with the exception of count 6, he would pass a sentence on count 2 that reflected the overall criminality and would impose concurrent sentences on the other counts. For reasons not detailed in the judgment, the judge gave all three appellants a full one-third credit for their guilty pleas. The judge referred to the fact that Mr Paloko had travelled from London to Yorkshire to carry out a criminal enterprise, crossing county lines and doing so having obtained a live firearm and live ammunition which he had brought to carry out the crime. The offence in count 6 carried a minimum sentence of five years’ imprisonment, but it deserved far more than the minimum term. The judge said he had considered R v Avis [1997] EWCA Crim 3423. He noted that, apart from the fact that the firearm contained live ammunition, a discharged bullet head was found in the car, which suggested that it had been used some time recently. Bearing in mind those factors and Mr Paloko’s criminal history, there would have been a sentence significantly in excess of five years for possession of that item on its own, but in his case totality would have to be considered, albeit totality was difficult to balance when there was a minimum term. On count 1 (affray), all three appellants were sentenced to two years’ imprisonment. On count 2 (possession of the imitation firearm), the starting point would have been seven and a half years, reduced to five years’ imprisonment after credit. Mr Tzourtzi was sentenced to nine months’ imprisonment on count 4 (having an article with a blade or point), and Mr Paloko to nine months’ imprisonment on count 5 (having an offensive weapon). On count 6 (possessing a prohibited firearm), Mr Paloko alone received a consecutive term of six years’ imprisonment. The judge considered dangerousness. He concluded that all three met the relevant criteria. They had travelled from London armed and with the intention of committing an offence. The knife and imitation firearm were produced without any hesitation. The judge had no doubt that they would have been used but for the occupants being disarmed. All three of them were dangerous men. They belonged to a criminal fraternity who would carry out violence when required. They had armed themselves to that effect. The judge passed an extended sentence upon each of them on count 2.

Mr Edward Moss, appearing on behalf of Mr Paloko, submitted that in passing a consecutive sentence on count 6 the judge had arrived at an overall sentence that was manifestly excessive, equating to a term in excess of fifteen years’ custody after trial. This was one occasion of criminality. In his written advice, Mr Moss had submitted that there was an unjustified disparity between the sentences passed on Mr Paloko and those passed on the other two appellants, but he sensibly abandoned that ground of appeal during oral argument. The court considered that given Mr Paloko’s basis of plea that he alone was in possession of the prohibited firearm and live ammunition, it was inevitable that the sentence he received would be more severe than that imposed on the other two appellants. The judge had been entirely correct to pass a consecutive sentence in relation to that offence; not to have done so would have been to fail to recognise the seriousness of the offence of possession of a prohibited firearm. The judge was also correct to say that, looking at that offence on its own, a sentence in excess of the five-year minimum term was amply justified, given that the firearm was live, was loaded with live ammunition, and there was the presence of a discharged bullet head, together with Mr Paloko’s bad criminal record, including for possession of a firearm albeit nearly nine years ago. Despite Mr Moss’ submission that effectively in the alternative the judge may have erred in passing the sentence he did on count 2 and had insufficient regard to totality, the court considered that in relation to Mr Paloko, as in relation to the other two appellants, the sentence imposed on count 2, so far as its custodial aspect was concerned, was entirely justified. The only aspect of the sentence on Mr Paloko which gave the court any pause for thought was whether the length of the consecutive sentence on count 6 paid sufficient regard to totality. As the judge recognised, the fact that there was a minimum sentence of five years’ custody for the offence did pose difficulties in dealing with totality. However, the sentence imposed of six years equated to nine years after trial, almost at the maximum for this offence of ten years’ imprisonment. Whilst this was extremely serious offending, given the aggravating features which the judge correctly identified, it was not the most serious for this type of offence. A starting point of nine years after trial paid insufficient regard to totality. In the circumstances, in order to pay proper regard to totality, the sentence on count 6 should be reduced from six years to the minimum term of five years’ imprisonment. It would continue to run consecutively to the other sentences. To that extent the appeal by Mr Paloko was allowed.

In relation to both the other appellants, the ground of appeal was that the judge erred in finding that each of them was dangerous and in passing an extended sentence without first obtaining a pre-sentence report. As was accepted by Mr Paul Crampin on behalf of Mr Tzourtzi, under section 156(4) of the Criminal Justice Act 2003 the court does not have to obtain a pre-sentence report before sentencing an offender. However, given the relative youth of these two appellants, the lightness of Mr Tzourtzi’s previous convictions and the lack of Mr Hasa’s previous convictions, it would have been better practice for the judge to have obtained pre-sentence reports before sentencing them. It was also unfortunate that the judge made the finding of dangerousness without alerting their counsel to the fact that he considered making such a finding, so that submissions could be made on the issue on their behalf. That said, the court now had a pre-appeal report for each of the two appellants. The author of the report on Mr Tzourtzi assessed that he posed a high risk of serious harm to the public, specifically those he might target for financial gain or for illicit substances. He demonstrated a capacity for violence in that he head-butted