Ahmed, R v

Neutral Citation Number: [2010] EWCA Crim 366 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 2009/5710/A7 Royal Courts of Justice Strand London, WC2A 2LL Friday, 12 February 2010 B e f o r e: MR JUSTICE MACKAY MR JUSTICE KEITH - - - - - - - - - - - - - - R E G I N A v JAMAL AHMED - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr S Parham appeared on behalf of the Appellant Mr A Agbamu appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE KEITH: On 22nd May 2009 at Aylesbury Crown Court, the appellant pleaded guilty to an offence of communicating false information contrary to section 114(2) of the Anti-Terrorism, Crime and Security Act 2001 (count 1), and to an offence of communicating false information with intent contrary to section 51(2) of the Criminal Law Act 1977 (count 3). Sentence was adjourned for the preparation of psychiatric and pre-sentence reports. The psychiatric report took quite a time to compile, and the appellant did not return to court until 25th October 2009. On that date he was sentenced by Judge Tyrer to 32 months' detention in a young offender institution on count 1, and to 16 months' detention in a young offender institution on count 3, to be served consecutively, making four years' detention in all. He now appeals against those sentences with the leave of the single judge. The offences related to hoax calls which the appellant made on a mobile. The first was on 30th July 2008. The appellant called the US authorities. He said that he was a member of the Pakistani Intelligence Agency, and that he had information that a chemical bomb had been planted at Frankie's restaurant in Time Square, New York. He gave a description of what the bomb looked like, and said that it would be detonated using a bluetooth device. He gave the names of the people who he said were responsible for the planting of the device. He said that the bomb would detonate at 11.40 that morning which was less than two hours away, and in a further call a little later he reminded the authorities that they only had 14 minutes left and they should do something. The US authorities took the call seriously. They organised the evacuation of several neighbouring buildings, including a restaurant called Frankie's and Johnnie's, which they presumed was the restaurant which the caller had referred to. Up to 70 police officers and 20 fire fighters attended the scene, and nearby roads were sealed off for a period of three to four hours. The following day the appellant called the Home Office switchboard, and again claimed to be a member of the Pakistani Intelligence Service. He said that he had information regarding a chemical bomb, this time in the Westminster area. He provided once again details of the appearance of the bomb and how it would be detonated, and he gave the names of the people responsible for it. In a further call he gave far more detail, and said that one of the men responsible for the bomb was on a flight to the United Kingdom, and that the bomb was planned to detonate at Marylebone Station at 3.00 that afternoon. He suggested that he met with the authorities there, and that they should bring as much manpower as possible. Initially the calls were thought to be genuine, but soon the authorities started to doubt their authenticity, and a police investigation was mounted. The calls had all been made from a mobile with a SIM card registered to someone who was spoken to by the police and who pointed them in the direction of the appellant. There was another link to the appellant since the caller had given to the US authorities as a contact number during one of the calls on 30th July the number of another mobile whose SIM card was registered in the appellant's name. The police went to the appellant's home that evening. Initially he denied any involvement, but quickly accepted that he had made the hoax calls. He helped the police to locate the SIM card he had used to make them. The appellant is 20 years old. He was 19 at the time, and had previous convictions for possessing cannabis and wasting police time. Since his release on bail following his arrest for these offences, he had got into more trouble, and he had served sentences of detention in a young offender institution totalling 22 weeks for various offences of dishonesty, and one for the racially aggravated form of causing harassment, alarm and distress. The appellant has consistently said that he made the hoax calls because he was high on cannabis at the time and was bored. Although he claimed he was just having a laugh, he acknowledged that he put details into the calls, to use his own words, "to make them look legit". He wanted them to be taken seriously, and although he claimed that he was sorry for what he had done, the author of the pre-sentence report on him took the view that he had sought to minimise what he had done. She noted that this was the third time that he had given information which was false. Apart from his previous conviction for wasting police time, he had called the police in 2005 to say that he had witnessed a stabbing, and that he had been involved in the 7th July bombings in central London. Had an indeterminate sentence been available for offences of the kind to which he pleaded guilty, the author of the pre-sentence report assessed him as posing a significant risk to members of the public of serious harm. The psychiatric report on the appellant diagnosed him as suffering from a conduct disorder and a dissocial personality disorder, aggravated by his misuse of drugs. His disorder had not warranted his detention under the Mental Health Act, and it was said that a custodial sentence could lead to a deterioration in his condition, and in his ability to control his emotions, particularly his anger. The appellant initially pleaded not guilty, and a trial date was fixed. However, following new solicitors acting for him, he changed his plea to guilty at a hearing two weeks or so before his trial was due to take place. However, the judge said that he was giving the appellant full credit for his pleas because he had admitted what he had done pretty much from the outset, and because of the delay in the preparation of the psychiatric report. He regarded the appellant's age, his immaturity, his lack of insight and his psychiatric condition as mitigation as well. Although he was prepared to accept that these were pranks, he did not think that they had been committed on the spur of the moment. He noted that one of the themes running through the authorities when it came to sentencing for offences of this kind was that the sentences should contain an element of deterrence. The point taken on behalf of the appellant is that the judge must have taken six years or so as his starting point. Bearing in mind that the maximum sentence for each of the offences which the appellant committed was seven years' imprisonment, the judge's starting point on the basis of concurrent sentences was close to the maximum. We have been referred in the advice on appeal to a series of authorities (admittedly none of them guideline cases) which are nevertheless said to show that the starting point for offences of this kind is usually much lower. They are Cook [2006] 2 Cr. App. R (S) 106, Phillipson [2008] 2 Cr. App. R (S) 110 and McMenemy [2009] 2 Cr. App. R (S) 57. We were also referred to a much more serious case than the present, Mason [2002] 1 Cr. App. R (S) 29, in which the Court of Appeal upheld four years' imprisonment on a SMITH BERNAL WORDWAVE plea of guilty, and it is said that if that was the appropriate sentence in that case, four years was too long in this. The present case is not that dissimilar from that of Cook, in which a sentence of three years' imprisonment passed on a man of 21 with mental health problems who had pleaded guilty to communicating false information with intent was reduced to two years' imprisonment. He had called the police and told them that he was about to blow up Canary Wharf. What made the appellant's case more serious, and really quite significantly more serious, was that he did it twice, albeit on consecutive days, and that he had a history of making hoax calls. Moreover, by calling the US authorities and the Home Office and giving them the details he did, he gave his calls a real degree of verisimilitude. The judge's presumed starting point of six years was very long, and it appears to us to be out of kilter with sentences normally passed for offences of this kind. We think that appropriate sentences for the appellant, bearing in mind his pleas of guilty for which the judge thought he should be given full credit, would have been three years' detention, which we propose to achieve by reducing the sentence on count 1 to 30 months' detention and the sentence on count 3 to six months' detention, those sentences to be served consecutively. To that extent, this appeal is allowed. SMITH BERNAL WORDWAVE