Practice and Procedure


PUBLISHED October 6, 2003

In light of the guideline case of R v Czyzewski (2003) sentences of five years and three years for conspiracy to evade duty were manifestly excessive.Appeal by the first defendant ('B'), with leave of the single judge, against a sentence of five years' imprisonment and application by the second defendant ('C') for permission to appeal out of time a sentence of three years' imprisonment. On 8 January 2003 at Maidstone Crown Court before HH Judge Croft QC, B and C pleaded guilty to conspiracy to fraudulently evade duty on tobacco contrary to s.172 Customs and Excise Management Act 1979. It was the Crown's case that between 6 December 2001 and 9 February 2002 B and C and two others, who were all members of the same family, committed the offences. Individual importations were established following seizures by Customs and the Crown further established that members of the family had travelled abroad using credit cards and ferries on several other occasions. The Crown contended that from that evidence the proper inference that could be drawn was that on those trips they brought tobacco into the country and evaded duty. It was calculated that a total of some ?919,209 had been evaded and a schedule was included in the indictment. B and C pleaded guilty to the indictment without limit, the case against the other two persons involved was not pursued. At no stage did B and C give notice of challenge to the schedules. When sentencing, the judge referred to the totality of duty evaded. B sought to take the point that the calculation was purely speculative and that the judge should not sentence on the basis of that calculation. The judge gave counsel an opportunity to call B to deal with the calculation but counsel declined. B appealed sentence on the grounds that: (i) the calculations were pure speculation; (ii) in offering to allow B to give evidence, that was in the nature of a Newton hearing and effectively reversed the burden of proof; (iii) when having regard to the guideline case of R v Jozef Eugene Czyzewski (2003) LTL 21/7/2003 the sentence was excessive; and (iv) insufficient credit was given for the plea of guilty. C applied for leave to appeal sentence out of time on the basis that the point taken by B was a good one.HELD: (1) The defendants pleaded guilty to the offence and no challenge was made to the calculations. At the sentence hearing the Crown was entitled to establish an inference of a conspiracy from the evidence. In fact it was conceded that there was no dispute that the trips took place, the only question was whether it was proper to draw an inference. It was not reversing the burden of proof simply to give B the chance to rebut the inference the judge was entitled to draw. The judge was entitled to sentence on the basis it was a conspiracy involving over £900,000. (2) In the guideline case of R v Czyzewski (supra) it was held that a sentence of between three and five years following trial, was appropriate for conspiracies involving sums between £500,000 and £1 million. If proper credit had been given for the guilty plea it was clear a sentence of five years was manifestly excessive and a sentence of four years would be substituted. (3) So far as C was concerned he was sentenced on the basis that he evaded duty in the region of £176,000. It was clear that the judge wanted to establish the level of involvement of C and that level of involvement was lower down the scale to that of B. In light of the guidelines the appropriate sentence for conspiracies involving sums between £100,000 and £500,000 was between nine months and three years. That was following trial and it was clear that C's sentence of three years was manifestly excessive and a sentence of two years would be substituted.B's Appeal allowed. C's application granted and appeal allowed.