Case No: 201600881A4, 201600970A4 and 201600969A4
Neutral Citation Number:
[2017] EWCA Crim 32
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HHJ KEMP
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
31/01/2017
Before:
LORD JUSTICE TREACY
MR JUSTICE NICOL
and
MR JUSTICE JAY
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
(1)
GAZMEND MULA
(2)
ILIR HASA
(3)
SAIMIR NEZAJ
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Anthony Heaton-Armstrong for Mula
Mr Ahmed Hossain for Hasa
Miss Sarah Lindop for Nejaz
Miss Rachel Beckett for the Crown
Hearing date: 24
th
January 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
MR JUSTICE JAY:
Introduction
1.
This is the Judgment of the Court.
2.
These three appellants appeal with the leave of the single judge against sentences of imprisonment imposed by HHJ Kemp sitting at Lewes Crown Court on 28
th
January 2016.
3.
The appellant Gazmend Mula received a total sentence of 10 years’ imprisonment on his guilty plea, composed of 6½ years’ imprisonment for conspiracy to kidnap and 3½ years’ imprisonment for possession of a class A drug (cocaine) with intent to supply.
4.
The appellant Ilir Hasa was convicted of conspiracy to kidnap on 22
nd
December 2015. He was sentenced to 8 years’ imprisonment.
5.
The appellant Saimir Nejaz was convicted by the jury on one indictment on the same date as his co-accused, and pleaded guilty to a number of counts on another. In relation to his conviction, he was sentenced to 8 years’ imprisonment for conspiracy to kidnap and a consecutive term of 1½ years’ imprisonment for intimidation of a witness. In relation to his guilty pleas, he was sentenced to 2 years’ imprisonment for possession of a class A drug (cocaine) with intent to supply, and various concurrent sentences for possession of false identity documents. Thus, his total sentence was 11½ years’ imprisonment.
6.
This appeal is directed to the sentences imposed for the offence of conspiracy to kidnap. Subordinate submissions were made in the grounds of appeal about totality but these were not pressed in oral argument. The judge treated the culpability of all three appellants as being equal. His starting-point was 8 years’ imprisonment across the board, and he gave Mula 20% credit for his late guilty plea.
7.
The judge presided over the trial of Hasa and Nejaz, and was therefore well placed to assess their respective involvement. However, the case was opened to him at some length on 28
th
January 2016 – for the benefit of Mula. We have carefully considered the prosecution’s detailed opening as well as the factual narrations set out in the three advices of appeal.
8.
Given the focus of these appeals, our recitation of the essential factual background will focus on the kidnapping.
Essential Factual Background
9.
The victim of the kidnap was Ardi Murataj. His evidence was that he worked for Hasa and Mula in their drugs business. Later, he worked for Hasa’s cousin, Tony Sula. At the beginning of April 2015 he told his employers that he no longer wished to work in the ‘dirty’ world of drug dealing.
10.
On 12
th
April 2015 Murataj was contacted by a cousin of Sula, who organised a meeting in a pub with another person. Whilst there, the other man took a ‘phone call and said that they need to go and see a client. Murataj thought that they were going to meet someone to sell drugs. They left by taxi.
11.
On arrival at their destination, the driver stopped the taxi and Murataj got out. He was met by Nejaz – who was previously unknown to him – and another unknown male. Nejaz asked, “how much is it?” Murataj started to say “£50”, but then Hasa and Mula got out of a car parked on the opposite side of the road and attacked him. They hit him on the head, and Nejaz and the other man also joined in the assault. Murataj was then dragged across to a Ford Astra and forced into the back of it. Witnesses were able to provide the car’s registration to the police. Part of the incident was caught on a private CCTV camera.
12.
Whilst in the Astra, Murataj was seated in rear of the car between Mula and the unknown male. Hasa drove the car and Nejaz was in the front passenger seat. During the journey, Mula hit Murataj with a metal bar. Murataj had a wound to his head which was bleeding, and all the men in the car were threatening to kill him, telling him that he needed to continue working in the drugs trade. He was driven for about 15 minutes before the car stopped in a village. For much of the journey Murataj’s head was bowed, and Mula kept hitting him – repeating the threat that if he left work, they would kill him and his family. On Murataj’s account to the Jury, they also forced him to admit that he sold drugs and recorded him doing so on an iPhone. Murataj was told to keep working; and then was driven back into Brighton, released from the car, and left at the roadside. Overall, Murataj had been detained for about 2-3 hours.
13.
Enquiries were made regarding the Astra, and it was linked to Hasa. The vehicle was later discovered, and traces of Murataj’s blood were found, as was Nejaz’s DNA.
14.
Mula was arrested on 14
th
April 2015 when police officers stopped the hire car he was driving as he approached a Ford Mondeo which was parked and empty. The hire car was examined and it was noticed that the driver’s side window panel was loose. When lifted away, there were two socks in the void space. The first contained 15 bags of cocaine, total weight 10.4 grams with a purity of 21%. The second contained the key to the Ford Mondeo. In that vehicle were discovered 120 packages of cocaine, total weight 83.5g, with a purity of 28%. Given that the identity and whereabouts of the kidnapped individual were unknown, Mula was given a ‘safety interview’, and thereafter interviewed as a suspect with an interpreter under caution. He answered ‘no comment’ to all questions asked of him.
15.
By 20
th
April 2015 the police had an idea who Murataj was, and they attended his home address. They found a blood-stained jacket linked to the blood found in the Astra. Police attended the premises the following day when Murataj was present. He gave police a false account of the kidnapping, indicating it related to the murder of his uncle some years back. He was then arrested on suspicion of possession with intent to supply class A drugs. He was remanded into custody after charge, and subsequently pleaded guilty to drugs and money offences.
16.
Hasa had been the first to be arrested and was also safety interviewed. He stated that he had been the driver of the Astra. Murataj had been dealing drugs to his ex-girlfriend, and Hasa told him to desist. On Hasa’s account, Murataj was fine when he dropped him off. Hasa was later interviewed as a suspect, and largely went no comment save for saying that he had bought drugs from Murataj before, and Murataj had snatched his girlfriend, had been giving drugs to her, and had raped her.
17.
In respect of Nezaj, the police investigation continued. Although Murataj had been reluctant to speak to the police, he contacted his solicitors, who then contacted the police. They arranged to visit him in prison to obtain a full statement.
18.
Murataj told the officers about the kidnapping. He described Nezaj as one of the men who had kidnapped him, and said that he had seen Nezaj in the same prison a week before. Nezaj had been remanded in custody after being found in possession of a large amount of class A drugs, as well as false identity documents, on 19
th
August 2015. Located on his person was a bag containing 8 wraps of cocaine, 35g in weight, with a street value of between £750 - £1,750. Nejaz had approached Murataj and had threatened him, asking him why he had reported the incident to the police and why he hadn’t continued working for Sula, dealing drugs. He added: “We will kill you as soon as you will get out”. Murataj was so frightened that he could not sleep for a week.
19.
Thereafter, police were able to link the DNA found in the Astra with Nejaz. He was arrested in prison for conspiracy to kidnap. Nejaz gave through his solicitor a prepared statement in which he denied any knowledge of the kidnapping, and gave a no comment interview. It should be noted that text messages on the mobile phones found in Nejaz’s possession at the time of his arrest discussed the kidnapping and joked about his involvement in it.
The Course of the Proceedings at Lewes Crown Court
20.
As we have said, Hasa and Nejaz were both convicted after a trial on 22
nd
December 2015. The position regarding Mula is more complex, leading to the adjournment of this appeal on 29
th
November 2016. Following that hearing, transcripts have been obtained of the proceedings before HHJ Kemp on 22
nd
January 2016, as well as of the Crown’s opening and Mr Heaton-Armstrong’s plea in mitigation on 28
th
January.
21.
Mula entered a guilty plea on 24
th
September 2015. He then submitted a basis of plea unacceptable to the Crown. A
Newton
hearing was fixed for 22
nd
January 2016. Before it took place, Mula submitted a revised basis of plea which denied any actual violence to the victim, and also denied “any underlying implication of drugs”. The Newton hearing was not, in the event, pursued. We have considered the transcript of the exchanges between Mula’s Counsel, Mr Heaton-Armstrong, and the Judge. Counsel observed that there had been negotiations between the parties following which Mula had revised his position. He now admitted to using violence, but “disputes having previously used the victim to do his bidding, dealing in drugs-wise, or having threatened the victim with future violence if he did not revert to his old ways, that is helping the defendant with his drug dealing activities, as he had done in the past”.
22.
Thus, the dispute appears to have had two elements. First, Mula was denying any previous involvement in drug dealing with Murataj. Secondly, he was denying that he was involved in threatening the victim with further violence if he did not return to his previous role. This second limb of the denial related to the threats allegedly meted out in the back of the Astra where Mula and Murataj were seated next to each other. Clearly, the two limbs were interconnected but they were not entirely congruent.
23.
The judge had obvious difficulty with this explanation. Counsel observed that Mula’s perception was that the purpose of the kidnap was that Hasa had it in for the victim regarding “some sort of domestic scenario”. It was further submitted that it would be wrong in principle to sentence Mula on any wider basis of a previous conspiracy to supply, because that would entail a separate offence for which he had not been indicted.
24.
There then followed exchanges between Counsel and the Judge, from which it appears that they were not on the same wavelength. The Judge asked Miss Beckett, for the Crown, for her assistance; and she observed that both Nejaz and Hasan were saying in different ways that drugs were not directly behind the conspiracy to kidnap, although the Jury had found Murataj’s account to be credible. Miss Beckett noted that “it is the background”; and then the following appears at page 8G/H of the Transcript:
“JUDGE KEMP: It is background, and I am not, because there isn’t a Count on the Indictment to reflect it, sentencing for that.
MISS BECKETT: No, and it will not be a higher sentence for the fact that Mr Murataj said he was working for them.”
In our view, it seems fairly clear that both HHJ Kemp and Miss Beckett were referring only to what we have called the first element or limb of Mr Heaton-Armstrong’s disputed matters. They were not addressing his second limb. That said, the Judge was making it clear that the first limb was not capable of enhancing the sentence.
25.
The Judge then asked Mr Heaton-Armstrong about whether Murataj would have known Mula before they came to this country, but for various reasons this was thought to be unlikely. The following exchange appears on the Transcript (at 9G-H):
“JUDGE KEMP: Well again, for my part, unless the Crown says otherwise, it is background but it does not go to sentence.
MISS BECKETT: No, it does not. Your Honour, if the basis of plea’s withdrawn I do not think there is anything remaining that would affect sentence, so if the basis of plea is withdrawn we can simply adjourn to sentence”.
Again, this must have been a reference to the first aspect of the dispute, not the second.
26.
At page 11 of the Transcript the Judge confirmed that it did not sound as if there was anything left materially that needed to be resolved at a
Newton
trial.
27.
In oral argument Miss Beckett pointed out that it was her understanding on 22
nd
January 2016 that Mula’s revised basis of plea had been withdrawn, and she was clear that the Crown did not contend that the antecedent drugs matters were other than background for the Court, and irrelevant to sentence. She did not understand Mr Heaton-Armstrong to be going further – that is to say, putting in issue what we have called the second limb, being Mula’s denial that he was involved in the enforced confession. On our interpretation of the transcript, HHJ Kemp shared Miss Beckett’s understanding of the position. However, Miss Beckett accepted that she had misunderstood the dual aspects to Mula’s denial.
28.
When she opened the facts to the Judge some six days later on 28
th
January 2016, Miss Beckett summarised the history regarding the basis of plea, and observed that Mula now accepted “full involvement” (Transcript 3A). In effect, she opened the case on a “full facts” basis. She said in terms that all three appellants forced Murataj to admit that he sold drugs and that they told him to carry on working. Much later, Miss Beckett listed the aggravating features of the kidnap. She did not expressly state that the antecedent drugs history was an aggravating factor, although she again highlighted the fact that the victim was forced to admit to drug-dealing; and that this admission was recorded.
29.
When he mitigated his client’s offence before the Judge, Mr Heaton-Armstrong reiterated the position he had adopted before him the previous week, namely that he understood the background to be “something to do with a fall out over a girl”. He submitted that his client now admitted that, whilst in the car, he continued to offer violence to the victim – “not in order to threaten him to go back to drug dealing for him – I have dealt with that already – but because the victim was acting … resisting and fighting for his life”.
30.
It is noteworthy that Mr Heaton-Armstrong did not expressly contradict any aspects of Miss Beckett’s opening to the Judge: i.e. did not expressly complain about the “full facts” opening, including the enforced confession and the reasons for it. By the same token, Miss Beckett did not expressly contradict Mr Heaton-Armstrong’s mitigation.
31.
In his sentencing remarks, the Judge observed that all three appellants were effectively of good character. He also observed, in relation to Mula, that “the basis upon which I deal with you today has been embraced by you at a relatively late stage”. At page 3 of the transcript, there is some confusion as to which of the appellants was denying that Murataj worked for him in the drugs trade, although the Judge made clear that “I am not actually sentencing you for any drugs offences”. Crucially, the Judge said in terms that in his view all three appellants were equally involved in this conspiracy. He listed the aggravating features in these terms:
“In my view, this was a serious offence: it was clearly and carefully planned, you were mob-handed, you abducted this young man in broad daylight, in a very public place, you used violence to suborn him, and although in the event he was detained for a relatively short time, two to three hours, during that time you subjected him to violence and threats of further violence; and, in effect, in that film he was blackmailed to keep working for you and if he didn’t he was threatened with violence. The fact that “he”, like “you” – with the exception of Mr Hasa – was involved in the supply of class A drugs does not assist at all; indeed, if anything, it tends to aggravate the background to this case”.
Thus, the Judge specifically stated that all three appellants were involved in the threats of further violence.
Grounds of Appeal
32.
Hasa’s grounds of appeal are that a starting-point of 8 years’ imprisonment was manifestly excessive, given the limited violence exerted and the relatively short period of detention. Mr Hossain drew our attention to the decision of this Court in
R v Syed Ahmed
[2010] EWCA Crim 3133
, where sentences in the range of 9-11 years’ imprisonment were imposed for what he submitted were far more serious offences of this nature. It is contended that the appropriate sentence should have been 5-6 years’ imprisonment.
33.
Nejaz adopts Hasa’s grounds, and further contends that the Judge should have drawn a distinction between him and his co-defendants in respect of their roles in the conspiracy. The evidence was that Murataj was working for Hasa and Mula, not for Nejaz, whom he had never met or seen before. Thus, it must follow, submits Miss Lindop for Nejaz, that (a) the drugs background was irrelevant, and (b) he could have had no involvement in the preparation and planning. It was further submitted in writing, but not orally, that the Judge failed to make sufficient allowance for the fact that Murataj had voluntarily involved himself in the drugs world. However, that is tantamount to saying that Murataj took the risk that he might be subjected to violent criminal activity of this nature, and the Court should reflect that acceptance of risk in some way. We unreservedly reject that submission.
34.
Mula also adopts Hasa’s grounds. He contended in writing that the total sentence of 10 years’ imprisonment involved an element of double counting and disregarded totality, but as we have said that submission was not pressed in oral argument. Mr Mula’s main point on appeal is that the Judge was wrong in principle to sentence him on the basis of facts which he continued to dispute notwithstanding his withdrawal of his basis of plea. Mula was continuing to dispute (a) that any drug dealing formed the background to his involvement in the conspiracy, and (b) that he was involved in the enforced confession of the victim and/or that his intention was to compel Murataj to continue to work in the drugs world. Further, to sentence him on that basis (at least as regards item (a)) would entail sentencing him for further offences in respect of which he had not been indicted. Overall, it is said that Mula should have been treated differently from the other appellants.
Discussion and Conclusions
35.
It is convenient to begin with the submission common to all Appellants, namely that a starting-point of 8 years’ imprisonment was manifestly excessive. There are no sentencing guidelines relating the common law offence of conspiracy to kidnap, and – as the Judge rightly noted – these cases are very much fact-sensitive.
36.
Having presided over the trial of two of these appellants, the Judge had ample opportunity to assess the overall seriousness of this offending. The matters which he specifically identified in his sentencing remarks were, in our view, accurately listed; including the use of physical violence with a weapon, and the enforced confession (assuming, at least at this stage of the analysis, that Mula could properly be included in this aspect of the case). Given that Murataj’s evidence specifically implicated Hasa and Nejaz in the enforced confession, that the Jury must have accepted his evidence in order to convict them, and that the Judge in any event had presided over their trial, these two appellants cannot complain about being sentenced on that basis.
37.
Further, in relation to two out of the three appellants the Judge clearly treated drug-dealing as forming part of the overall context. He specifically excepted Hasa from this, although that exclusion did not serve to diminish Hasa’s sentence. The Judge did not specifically address Nejaz’s point that his drug-dealing was entirely separate, but we have to say that it was wholly implausible that it should be so regarded. The evidence was that Nejaz pretended to be a customer of Murataj’s and that the enforced confession related to future drug-dealing. Nejaz must have had an interest in seeking to compel the victim to continue to operate in this way of business. Very similar points may be made against Hasa, although the Judge did not expressly make them. Overall, neither Hasa nor Nejaz can complain about this.
38.
In any event (and in this respect the same point falls to be made in respect of the first limb of Mr Heaton-Armstrong’s submissions), the Judge may have treated drug-dealing as forming part of the background, but it did not serve to enhance the sentences. The Judge had made that point clear on 22
nd
January 2016 (when, admittedly, Hasa and Nejaz were not present), and he adhered to this on 28
th
January 2016.
39.
At page 7A of the Transcript of his sentencing remarks, the Judge
did
say that the involvement of Murataj, Mula and Nejaz in class A drugs was a matter which “if anything tends to aggravate the background to this case”. However, the Judge was not linking this to the preparation and planning of the conspiracy to kidnap. It was general background which, on a fair reading of the Judge’s sentencing remarks as a whole, did not serve to increase the starting-point.
40.
In our judgment, cases of conspiracy to kidnap are very much fact-specific, and little assistance may be derived from considering other decisions of this case – save in very general terms. The starting-point was undoubtedly severe, but in our judgment it cannot be characterised as being manifestly excessive.
41.
This leaves Mula’s further argument (viz. the second limb of Mr Heaton-Armstrong’s submission) that the Judge ought not to have sentenced him on the basis that he had any involvement in the enforced confession of Murataj. It was wrong in principle, so the submission runs, to sentence Mula on a footing which he was continuing to deny.
42.
Our starting-point is to agree with Mr Heaton-Armstrong that he did submit to the Judge on two occasions that his client did not accept that he was involved in the enforced confession. On the other hand, we consider that it is reasonably clear from the transcripts that neither the Judge nor Miss Beckett interpreted Mr Heaton-Armstrong in that way, and we obviously accept what Miss Beckett told us at the hearing about her state of mind.
43.
It is unnecessary for us to reiterate the basic principles set out by this Court, Lord Lane CJ presiding, in
R v Newton
[1982] 77 Cr App R 13. It would be more useful, and in the circumstances of this case salutary, to remind the parties and practitioners of the further guidance given by this Court, Sir Igor Judge P presiding, in
R v Underwood
[2005] 1 Cr App R 13
. The guidelines on the approach that the sentencer ought to take where an accused pleads guilty on a specific basis that the prosecutor may not accept have been helpfully listed in
Blackstone’s Criminal Practice
, 2017 edition, at paragraph D20.9. These include the requirement that any basis of plea must be reduced to writing and signed by both advocates
In Magistrates’ Court proceedings, any basis of plea must be in writing: see CPD Part 24.11(5). In the Crown Court, “the court may give directions for determining the facts on the basis of which sentence must be passed” (see CPD Part 25.16(4)) but there is no express requirement that the basis should be encapsulated in a document. However, in line with
Underwood
and good practice, such directions should require that any basis of plea be written and signed. We are not aware of the directions given in the present case, if any, but note that Mula’s bases of plea had been in writing, although the one version made available to us has not been signed.
. If the agreed basis of plea is not signed by advocates for both sides, the judge is entitled to ignore it. Further, at a Newton hearing the judge is entitled to decline to hear evidence about disputed facts if the accused’s case is absurd or obviously unreliable, but he should explain why he has reached that conclusion.
44.
The reasons for the requirement for putting a basis of plea in writing are clear. The Court needs to be satisfied that the plea is unequivocal and that the defendant is prepared to sign it. This has a dual purpose. First, there will be many cases, and this was one of them, where a defendant needs to be “pinned down” as to a clear and unambiguous version of events which cannot be subsequently gainsaid, unless of course the plea is withdrawn. Mula was not prepared to adhere to just one account, and he vacillated and prevaricated over a period of four months. Secondly, and connectedly, a signed basis of plea ensures that no-one misunderstands the position, whether it be the Court or the Crown. Unfortunately, that is precisely what happened here.
45.
It follows that Mr Heaton-Armstrong was remiss in not providing a written basis of plea which was signed, and that both Miss Beckett and the Judge were remiss in not insisting upon one.
46.
The absence of a written basis of plea is not necessarily fatal to Mr Heaton-Armstrong’s appeal on this aspect, but it does substantially weaken it. As we have said, he did not raise an objection to Miss Beckett’s opening on a full facts basis, and mitigated as if he could have full confidence that no misunderstandings could possibly have arisen. In any event, it is clear law that a judge would be entitled at a
Newton
hearing to reject an account which is manifestly absurd, and (as we have said) to refuse to hold such a hearing in such circumstances. Although the Judge did not say in terms that Mula’s assertion that he was not involved in obtaining the enforced confession was manifestly absurd, the procedural failings which have arisen in this case mean that we are entitled to reach our own view on this issue, drawing such inferences as are appropriate from the Jury’s acceptance of Murataj’s evidence.
47.
The position here is that Murataj was claiming all along that he worked for both Hasa and Mula. Mula’s perception that the dispute concerned a young woman was entirely implausible, not least on account of the overall background and because he must have been aware that Nejaz would pretend to be a customer of the victim. Mula was heavily involved in the infliction of physical violence in the car with a metal object, and was seated right next to Murataj when the specific threats were being made. It beggars belief that he was not fully aware of the purpose of the kidnap and was not fully complicit, if not directly involved in the enforced confession.
48.
Accordingly, we reject Mr Heaton-Armstrong’s submissions on what we have called the second limb of his case.
Disposal
49.
These appeals must be dismissed.