R v Mohammed Sajad & Anor

There are before the court today two applications arising from “Operation Debating”, a National Crime Agency (“NCA”) investigation into the activities of an organised crime group (“OCG”), based in the West Midlands, involved in the importation of very substantial quantities of cocaine and their onward distribution.

The investigation culminated in charges against Mohammed Sajad (“Sajad”), Kulvir Shergill (“Shergill”), Khurran Mohammed (“Moammed”) and Shafkat Ali (“Ali”) for a single count of conspiracy to evade the prohibition on the importation of a controlled drug (cocaine) in February and April 2020.

The trial having been fixed for May 2024, on 6 October 2023 Sajad pleaded guilty. Shergill, Mohammed and Ali entered guilty pleas on 24 April 2024.

On 20 September 2024, in the Crown Court at Birmingham, Her Honour Judge Sarah Buckingham sentenced Sajad to 16 years' imprisonment and Shergill to 21 years and three months' imprisonment.

Both applicants now seek leave to appeal against those sentences on the basis that they are manifestly excessive. Their applications, with one limited exception, were refused by the single judge. Shergill obtained leave to appeal on the narrow question of whether he was given appropriate credit for his guilty plea, which appeal is also before the court today.

The defendants were members of an OCG involved in the importation of cocaine from the Netherlands and its onward distribution. The cocaine mostly comprised kilo blocks, in consignments never less than 15 kilograms and up to 72 kilograms on one occasion.

The drugs were hidden within the packaging of innocuous goods, usually car parts, and were delivered unknowingly by legitimate logistics companies. The OCG used three different locations to take delivery, each of which had the appearance of being a legitimate business, and, once received, the drugs were distributed by members of the group. The task of distributing the drugs fell almost exclusively to Sajad and Ali. The dispatches of goods frequently involved several kilos at a time being sent to various parts of the country, including London.

The conspirators used encrypted EncroChat devices to co-ordinate the conspiracy. Believing those communications to be wholly secure, they exchanged frank and open communications, including sending images of tens of kilos of blocks of cocaine in the warehouses to show that they had been received.

Shergill was the exclusive user of the EncroChat handle “orderlyswarmer”. Sajad, Mohammed and Ali shared use of a second EncroChat handle “possummarsh”, with that device changing hands between them on a frequent basis. A fifth defendant, Jagdeep Singh (who was tried separately) was the only member of the group who did not have access to an EncroChat device; he was supplied with “burner” phones.

Shergill was in direct communication with the upstream importers based in the Netherlands and the main point of contact for those importing drugs into the country and those who were being supplied downstream. He directed the activities of Sajad, Mohammed and Ali. The activities of those individuals included acting as the warehouseman who took delivery of consignments when they arrived by courier, processing the consignments and supplying the drugs to customers, and frequently driving consignments of drugs and/or cash, which were the proceeds of the sale of the drugs, to and from Birmingham.

The first delivery took place on 26 February 2020 to an address in Walsall. It is not clear whether the group had access to the interior of those premises. There was mobile phone contact between Shergill, Mohammed and Ali at around the time of the delivery, and on the same day Sajad made a round trip to London to distribute the drugs imported.

The second delivery, to the same address, took place on 4 March. Once again, there was a high level of mobile phone contact between the conspirators at and around the time of the delivery. Sajad then made a round trip to London to distribute the drugs.

The third delivery, on 25 March, was made to the address of an auto parts business in West Bromwich. Once again, Ali, Sajad and Mohammed had significant mobile phone contact around the time of the delivery. Sajad attended at the premises to take delivery. He also took delivery of the fourth consignment at the same address on 27 March.

From that point onwards, the EncroChat devices were in regular use. A message from Shergill using the “orderlyswarmer” handle requested payments, and discussed the timing of meetings with someone using the handle “royalberry”. There was also contact between Shergill and the upstream Netherlands importers and with downstream distributers. The exchanges with importers included the photograph of a new delivery address which the OCG used from late April onwards.

A further delivery was made to the West Bromwich address on 1 April. Sajad took delivery. Shergill gave Sajad instructions as to what was to be done with that consignment; and Sajad sent Shergill photographs of the consignment by EncroChat confirming the number of blocks received.

Messages showed Shergill giving instructions to the other defendants at or around the time consignments were delivered, and Sajad sending Shergill photographs of the drugs delivered as they were unpacked. On one occasion, Sajad sent a photograph of one of the blocks opened up. As we have said, Shergill also exchanged messages with downstream customers and arranged for the collection of money and delivery.

The sixth delivery, to the auto parts store, took place on 2 April 2020. It was signed for by Sajad who messaged Shergill shortly afterwards, sending the usual images of the drugs. Shergill was in contact with Ali about downstream delivery, as well as with a downstream customer whose handle was “goshooter”; and he was in contact with Sajad and Ali, monitoring steps taken to deliver the drugs. Sajad made the delivery to London.

There was an unsuccessful attempt to co-ordinate a large shipment of 40 kilograms to a new address in Dudley on 9 April 2020. That address had been organised by Shergill who told the Dutch supplier about “your new unit”. The messages suggest that that may have been a drug of a different kind, rather than cocaine. Shergill attended to watch delivery and made contact with downstream customers to co-ordinate distribution.

On 22 April 2020, a further delivery was expected at that same Dudley address. It was intercepted by the NCA who found a total of 30 kilograms of cocaine, with a purity range of 64 to 81 per cent. The NCA monitored the Dudley address and saw Singh present. Messages between Shergill and the upstream supplier referred to Singh being present there to receive that shipment.

The NCA replaced the drugs with material of a similar size and weight, and the consignment was duly delivered to the Dudley premises the following day. Shergill had once again arranged for Singh to be present to take delivery, and there were communications between Shergill and Ali reporting on the consignment.

Singh was arrested after taking possession. Ali reported the police involvement to Shergill who told Ali to get rid of the phones he had been using to communicate with Singh.

The ninth and final delivery, which presumably was en route and too late to stop, arrived the following day. It was delivered to the Walsall address used for the earlier consignments. Mohammed received the goods. Shergill had exchanges with the Dutch supplier and also with Mohammed.

The total amount of drugs of all kinds imported by the group over that three month period had been calculated by the NCA at 314 kilograms, including the 40 kilograms intercepted. However, we are only concerned with the 250 kilograms of cocaine, which formed part of that total.

We should say a little more about how the case developed in terms of the quantity of drugs in issue. When the prosecution first served the case summary on 31 July 2023, they put the total quantum of drugs at 141 kilograms. Shergill served a basis of plea in which he said that that figure was exaggerated and that the relevant quantity was 30 kilograms. The prosecution did not accept that basis, and a Newton hearing was ordered. That led, on the prosecution's part, to a further review of the EncroChat communications which culminated in the 314 kilograms figure we have already mentioned. That figure duly featured in the prosecution sentencing note served on 30 July.

Shergill's defence sentencing note, which was uploaded on 12 September, now accepted that 171 kilograms of cocaine had been imported. The Newton hearing nonetheless went ahead. At that hearing, following the evidence from a Mr Todd on behalf of the prosecution, Shergill confirmed that he would accept that the figure involved was 250 kilograms. The prosecution confirmed that it was content for Shergill to be sentenced on that basis. The judge had read in for, and heard such evidence as was called at that Newton hearing.

When the police had executed a search warrant at Sajad's address on 12 May, Sajad told them that he was in possession of a Glock revolver. In the course of a subsequent search, 30 mobile telephones, cocaine and drug paraphernalia were found, together with a Smith and Wesson revolver, two black 9mm Steyr pistols, and 452 live rounds of ammunition of various kinds. Sajad was sentenced for those offences, as it happens by the same judge, on 12 August 2020. After 30 per cent credit for the guilty plea, the sentence imposed was one of seven years and six months' imprisonment.

For an individual with a leading role, category 1 of the applicable sentencing guideline provides for a starting point of 14 years' imprisonment, by reference to an indicative quantity of 5 kilograms, with a range of 12 to 16 years. For a significant role, the starting point is ten years' imprisonment, and a range of nine to 12 years.

The judge, as we have indicated, passed sentence on the basis of a total importation of 250 kilograms. She referred to the following statement in the guideline:

“Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender's role.”

Unsurprisingly, the principal issue at the sentencing hearing was the appropriate classification of the roles performed by the various defendants. The judge concluded that Shergill ran the West Midlands end of the operation and was in direct communication with the upstream importers, as well as being the main point of contact for the group's wholesale customers. He organised transportation with the downstream customers and organised and carried out the onwards delivery of the drugs and collection of payment. The judge found that Shergill exercised clear influence on those below him in the chain; and that he directed the activities of Sajad, Mohammed and Ali and, through Ali, of Singh. The judge also found that Shergill acted in expectation of substantial gain. She rejected the suggestion that he could properly be characterised as providing little more than logistical services. She found that he had played a leading role. In that regard she referred to the use of the EncroChat.

Having considered Shergill's previous convictions, including a notable break in offending, the judge came to the conclusion that the appropriate sentence, before credit for the guilty plea, was one of 25 years' imprisonment. She allowed 15 per cent credit, which resulted in the sentence that we have indicated.

The judge found that Sajad's role included acting as a warehouseman, taking delivery of the drugs, processing consignments when they were received and delivering them to customers, which frequently involved driving consignments of drugs or collecting and delivering cash between Birmingham and other locations. Sajad had conceded involvement between 26 February and his arrest on 13 May. The judge found that he acted as a trusted lieutenant and she was satisfied that from the tasks he performed, his dealing with the product and his assistance with multiple deliveries, he must have understood the scale of the operation and expected significant financial gain. She also referred to the fact that he was trusted with an EncroChat phone, made repeated trips in possession of that phone, and assisted in dividing up the product, collecting money, and even communicating on one occasion with a legitimate courier about a delivery. On that basis the judge was satisfied that Sajad fell very squarely within the “significant role” category.

She had regard to his previous convictions for possession of Class B and Class A drugs, and also the previous firearms conviction to which we have referred. She considered a submission that the drugs and firearm offences were linked and that, had the drugs charges been brought forward at an earlier stage, Sajad would have fallen to be sentenced for both of them at the same time.

The judge said that she would take account of the fact that Sajad had been charged with the drugs conspiracy five months after the sentence for the firearms offence had begun. She said that it was not possible to be certain about what would have happened if the court had been invited to proceed on the basis that the offences were linked and they had both fallen for sentence in 2020, but the best she could do was to bear in mind that half of the firearm sentence had already been served by the time of the sentencing hearing in the conspiracy case.

She said that the appropriate starting point for the drugs conspiracy offence was a sentence of 20 years' imprisonment. She allowed 20 per cent credit for the guilty plea, which resulted in a sentence of 16 years' imprisonment. In reaching that conclusion, she had deducted one year to allow for time that Sajad had spent on remand after completing the custodial part of the firearm sentence. The 20 per cent credit that Sajad received for his guilty plea reflected the fact that it was entered at an earlier time than Shergill's guilty plea, and for that reason was higher than the 15 per cent credit that Shergill had received. We note that Shergill's guilty plea was consistent with the 15 per cent credit that counsel accepted would ordinarily be appropriate for a guilty plea at the relevant stage. But counsel expressly submitted that a higher credit should be given in Shergill's case, having regard to what were said to be the unique circumstances of this case.

Ali and Mohammed, who entered guilty pleas at the same time as Shergill, received credit of 20 per cent. The difference between the 15 per cent credit that Shergill received and the 20 per cent credit that Ali and Mohammed received forms that basis of the limited ground of appeal for which leave has already been given.

Shergill seeks leave to pursue ground 1, as sent out in the Advice and grounds, namely that the 25 year starting point was too high. He submits that the judge failed to reflect the fact that Shergil was merely providing logistical support, rather than acting as the buyer and seller of the drugs in question, and he suggests that that should have led to a much lower uplift from the category 1 figures when having regard to the quantity of drugs in issue.

There is also reference in the grounds to the judge referring to Shergill receiving a commission of £70,800, which it was said failed to reflect the judge's finding that the offence should be sentenced on the basis that it involved 250 kilograms of cocaine, rather than the higher figure of 314 kilograms of drugs.

In relation to the ground for which leave has been given, it is said that Shergill should have received 20 per cent credit for his guilty plea.

So far as Sajad is concerned, he advances a number of grounds, but Mr Meredith today very helpfully summarised them into broadly three submissions. First, it is said that the judge had misunderstood Sajad's role in the hierarchy which effectively spanned the “lesser” and “significant” role categories, but did not take Sajad firmly into the “significant” role band. Secondly, it is said that the judge afforded insufficient credit for the guilty plea, having regard to the time at which the plea was entered and what is said to be the complexity of the case and also the fact that the judge had failed to take account of totality, having regard to the sentence for the firearms offences imposed in August 2020, and the fact that the applicant had served the custodial element of that sentence at the time he fell to be sentenced for the drug offences. Thirdly, it is said that had it been possible to sentence for both offences at the same time, the sentence the judge had imposed on the two offences separately would have been seen as manifestly excessive.

We consider Shergill's application for leave first. We have carefully considered the submissions about role, but we are not persuaded that it is arguable that the judge's 25 year starting point was manifestly excessive.

Looking at the matter first in the round, this was a major conspiracy to import and distribute 250 kilograms of cocaine. The deliveries were made to three different warehouses, one of which was leased by an associate of the OCG, another by the OCG itself. As the sentencing guidelines make clear, for offences of that kind, where the operation is on the most serious and commercial scale, sentences of 20 years and above may be appropriate.

In this case, the quantity of drugs was 50 times the category 1 quantity, and on any view Shergill played a very important role in the conspiracy. He was the senior figure at the UK end and had a close involvement in importation and distribution. We are satisfied that those facts alone are sufficient to warrant a starting point of the order adopted by the judge.

We are also satisfied that the criticisms of the judge fail at the more granular level. The judge was clearly entitled to find that Shergill played a leading role. He facilitated in a very meaningful way the buying and selling of drugs on a large scale, even if not for his own account. He was involved in delivery, distribution and the collection of payment. He had direct contact with the Dutch importers, and in one message with a Dutch user using an EncroChat handle discussed the price point for selling the drugs, referring to a rate of £28,000 to £28,500, as well as the quality of the product. He gave advice as to how to effect the last shipment after the police had arrested Singh. He sourced the Dudley premises for use in the later deliveries. He was the main point of contact with downstream customers. He clearly had direction and oversight over Sajad, Mohammed, Ali and (through Ali) Singh. He gave instructions, for example, to Ali to dispose of the “burner” phone. He had sole use of an EncroChat device. He was also clearly acting in expectation of substantial financial gain.

The judge's figure of £70,899, which was taken from the prosecution sentencing note, had taken the lower end of the £200 to £300 per kilogram commission referred to in Shergill's basis of plea, but applied it to the 340 kilogram figure. Had 250 kilograms been used, the commission would have been £50,000 – still clearly a substantial financial gain – and, of course, higher than that had the mid-point in Shergill's commission range had been used.

The judge was entitled to find that Shergill's expectation of financial gain, which is the relevant factor in the guideline, was greater than the amounts received.

Accordingly, we refuse the renewed application for leave on ground 1.

In relation to ground 2, the 25 per cent credit for the guilty plea would have been available had Shergill pleaded guilty on 5 January 2022 at the plea and trial preparation hearing. He did not do so, and the trial was fixed for 17 April 2023, but had to be vacated due to constraints in capacity by the court.

On 8 July 2023, it was re-fixed for 13 May 2024. Shergill did not enter a guilty plea until 24 April 2024 – one month before trial.

An issue arises as to whether the judge may have given a lesser credit for the guilty plea to Shergill because of the events that culminated in the Newton hearing. The judge does not refer to that in her sentencing remarks, but we accept that that distinction would provide a basis for distinguishing between the credit given for Shergill and that given to Mohammed and Ali. It was undoubtedly Shergill who took the lead on that issue. The sentencing note filed for Sajad did not address the quantity of drugs at all, but agreed that this was a case which involved drugs of significantly higher than the category 1 figure, such that 20 years or more might be appropriate, depending on role. Ali's basis of plea said nothing about quantity, beyond saying that he was unaware of the actual quantity of cocaine and only handled what he was told to deliver. Mohammed essentially asserted the same in his basis of plea.

In those circumstances, we believe that the judge would have been fully entitled to draw a distinction between the position of Shergill and those of Ali and Mohammed by reference to events in the run up to and at the Newton hearing. That had involved a very significant movement by Shergill as to the quantity he accepted was involved and it was only after evidence had been given at the start of that hearing that he agreed that 250 kilograms was the appropriate figure.

The judge, of course, did not refer to those matters and, if that was a factor which influenced her decision, we accept that she should have done. But putting that issue entirely on one side, we are not persuaded that the credit of 15 per cent was wrong in principle. Given the sliding scale between 25 per cent available at the plea and trial preparation hearing and ten per cent available at the trial, the judge's decision to allow 15 per cent for a guilty plea entered about a month before trial, and which was the figure usually appropriate for a guilty plea at that point, appears to us to be entirely justified. The fact that Shergill had delayed entering a guilty plea for a while during ongoing debates about the admissibility of EncroChat evidence (albeit it is fair to say entering a plea before that debate was finally resolved) does not seem to us to merit a credit substantially different from that imposed by the judge.

Nor are we persuaded that anything can be made of the disparity between the 15 per cent accorded to Shergill and the 20 per cent that Ali and Mohammed received. The events of the Newton hearing amply justify that difference. But even if they did not, at best for Shergill, the other defendants may, to their good fortune, have received a generous credit. That does not mean that the credit for the guilty plea of 15 per cent that Shergill received involved any legal error. We do not accept that the difference comes close to the kind of disparity which on its own would justify an appeal against sentence.

For those reasons we reject ground 2.

We turn to Sajad's application for leave. We repeat our general observation about the scale of the conspiracy and the significance of Sajad's role in it. The judge was fully entitled to find that he was active throughout the conspiracy, in contrast to Mohammed who stepped back from the conspiracy for a period around the birth of this child. Sajad used the EncroChat phone in a journey to London on 26 February 2020, following the first delivery that day. There is nothing to suggest that he had disengaged from the conspiracy prior to his arrest on 12 May, by which time the last shipment had taken place on 24 April 2020. The judge was therefore fully entitled to conclude that a sentence in the twenty years plus bracket was the appropriate range.

We also accept that the judge was fully entitled to conclude that Sajad played a significant role. We do not accept that this case can fairly be said to be one on the cusp between “lesser” and “significant” roles. Sajad took delivery of consignments 3, 4, 5 and 6. He was due to take delivery of consignment 1143, but repeated attempts to take delivery were unsuccessful. We accept Mr Meredith's point that those involved attempts to deliver at the auto parts address, but we are not persuaded that this reflected a limited role on Sajad's part. For example, he was involved in communicating with other OCG members in the run up to the delivery to the Walsall address and the onwards delivery of product received at other addresses. He was involved in communications with the courier companies; he opened up deliveries 5 and 6 and counted the number of blocks; he sent photographs showing them and confirming the number to Shergill. It cannot credibly be suggested that he did not understand the scale of the operation. He was also involved in dealing with downstream customers, making trips to London, and exchanging the tokens used to prove identity. He was trusted with the EncroChat device used to communicate with Shergill and had begun to use that device before the intensity of Mohammed's involvement with the OCG reduced, following the birth of his child.

We are satisfied that the judge was fully entitled to reject the suggestion that Sajad was not acting in expectation of significant financial gain and that his payment was limited to one ounce of cocaine per week. The reliance placed in this respect in Sajad's Advice and Grounds on the basis of plea for the firearms charge can carry little weight. It was not accepted by the judge. In that basis of plea, Sajad claimed never to have opened the rucksack or shoebox containing guns and ammunition. But, as is apparent from the sentencing remarks, the two Steyr pistols had his DNA on them, and his fingerprint was found on the outside of one of the plastic bags containing ammunition. There was also a complete absence of any detail about the alleged drug debt which Sajad claimed he was working off. The judge was fully entitled in those circumstances to be wholly sceptical about Sajad's evidence.

Having gone through all those matters, we are satisfied that the judge was fully entitled to conclude that a substantial uplift to the starting point was appropriate in Sajad's case, of a similar order to the uplift from the starting point adopted in Shergill's case, taking it to 21 years, but with a one year reduction for time spent on remand.

That leaves the firearms offence. We do not think it is realistic to suggest that that could have been indicted at the same time as the drug conspiracy offence. The NCA were not aware of Sajad's involvement in the drug conspiracy until after he had been sentenced for the firearms offence. Further, he did not admit his guilt, or offer a guilty plea in relation to the drug conspiracy offence until 2023. It is unrealistic to suppose that he would have adopted some different stance had he been charged with the drug conspiracy in late 2020.

It is not clear what approach Sajad would have adopted had those two offences fallen to be sentenced at the same time. His basis of plea was that he had stored the firearms to pay off drug debts, but that basis was not accepted, albeit that he was sentenced on the basis that he was not the owner of the firearms. The prosecution told the court on that occasion that there was no evidence that Sajad was involved in the supply of drugs. Had Sajad accepted that he was holding firearms on behalf of an OCG, of which he was an active member and in whose drug conspiracy he had played a significant role, that would undoubtedly have been a very aggravating factor so far as both sentences were concerned.

The effective sentence passed for both offences was the equivalent of just over 23 years' imprisonment, with credit for the guilty plea. Had they been sentenced together, we are not persuaded that it would have been arguable that a sentence of that length did not pay sufficient regard to the principle of totality, whether that had involved consecutive sentences, or a sentence on a lead offence reflecting the overall criminality.

As to the suggestion that the judge afforded insufficient credit for the guilty plea, the 20 per cent credit came after the plea and trial preparation hearing, where 25 per cent credit would have been available, but significantly before a trial. We are persuaded that the 20 per cent figure was amply within the range it was permissible for the judge to take. Whilst Mr Meredith said that there had been indications of a guilty plea at a much earlier stage, a not guilty plea was entered at the plea and trial preparation hearing; and even six months later the system suggests no more than that the case “may be coming to a resolution in the not too distant future”. There is nothing to indicate an unequivocal intention to plead guilty. Sajad was maintaining his not guilty plea at that stage. Whilst it is said that it was necessary to discover the full scale of the conspiracy, Sajad knew his own part, and it was open to him at the PTPH to offer a guilty plea on a basis reflecting his evidence as to what his part was.

In those circumstances, we refuse Sajad's renewed application for leave to appeal against sentence.