Sentences of five years and three years nine months' imprisonment were not excessive where the duty evaded in a cigarette smuggling operation was estimated at ?4 million.Applications for leave to appeal against sentence. On 12 September 2002 the applicants ('N' and 'H') pleaded guilty to conspiracy to contravene s.170(2) Customs and Excise Management Act 1979. At the hearing the applicants refused the judge's offer of a Newton hearing and proceeded on the basis of submissions about the evidence from which the judge could make a finding. The judge rejected the applicants' version and sentenced N to five years' imprisonment and H to three years and nine months' imprisonment. The case involved the importation of large numbers of cigarettes. There had been twelve consignments in total and the duty evaded was estimated at around £4 million. The applicants wished to appeal against their sentences on the basis that: (i) in a Newton hearing, if there was a substantial conflict between the factual basis for sentence, the defendant's version had to be accepted so far as possible; (ii) the submissions by counsel at the hearing were a Newton hearing; (iii) the bases of plea submitted by the applicants were not manifestly false and the judge did not find that they were; (iv) the applicants' bases of plea were consistent with the weight of the evidence in the case. Consequently the judge should have sentenced on the written basis of plea; (v) in the case of N the judge failed to give sufficient credit for his guilty plea and strong personal mitigation; and (vi) in the case of H the judge failed to take sufficient account of his guilty plea, age, good character, medical background, references, personal circumstances, the contents of the pre-sentence report, and his role in the conspiracy.HELD: (1) The judge correctly referred to the guidance in R v T (1999) 1 CAR 29 and indicated that he was prepared to hold a Newton hearing. None of the defendants wished a Newton hearing to take place and what followed was not a Newton hearing. (2) Neither the prosecution nor the judge accepted the bases of plea offered by the applicants. The judge's analysis and conclusions in his sentencing remarks did not go beyond what was open to him in all the circumstances, given that the applicants had invited the court to proceed without a Newton hearing. He was entitled to reject defence submissions which conflicted with the facts disclosed in the Crown case or which he was satisfied were incredible or without substance. (3) There was no reason to suppose that the judge was not mindful of the burden which lay upon the prosecution to satisfy him as to the facts. Any failure expressly to find that the defence assertions were incredible or manifestly false was not demonstrative of any error of approach on the judge's part. (4) In passing sentence, the judge had regard to the guidance given in R v D (1999) 1 CAR 371 in relation to the sentencing of defendants for fraudulently evading duty on alcohol and tobacco. (5) The judge was entitled to sentence the applicants on the bases set out in his sentencing remarks. In applying the guidelines in R v C & Ors (2003) LTL 21/7/2003, having regard to the role of each applicant and the relevant aggravating and mitigating factors, the sentences were not manifestly excessive or wrong in principle.Applications refused.

[2003] EWCA Crim 3449

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