Law Report: 5 may 1998: Sentence guidelines in duty evasion cases

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Regina v Dosanjh; Court of Appeal (Criminal Division) (Lord Justice Rose, Vice President, Mr Justice Butterfield and Mr Justice Richards) 1 May 1998

THE COURT of Appeal gave guidelines as to the appropriate level of sentencing in cases of being knowingly concerned in the fraudulent evasion of duty chargeable on goods contrary to section 170(1)(b) of the Customs and Excise Management Act 1979.

N. Petersen (Registrar of Criminal Appeals) for the appellant; Oliver Sells QC (Solicitor, Customs and Excise) for the Crown.

Lord Justice Rose, VP said that the maximum sentence for offences contrary to s 170 of the Customs and Excise Managment Act 1979 had been increased by section 12 of the Finance Act 1988 from two to seven years' imprisonment, and accordingly authorities relating to offences committed before 29 July 1988, when section 12 had come into effect, were no longer to be regarded as a reliable guide to the appropriate level of sentence.

The amount of duty evaded was an important factor in determining the appropriate sentence, but other aggravating factors included playing an organisational role in the importation; making importations repeatedly; continuing to make importations despite a warning from the Customs and Excise; and importing more than one type of dutiable goods, for example alcohol and tobacco. Mitigating factors included a prompt plea of guilty, and, in many offences, previous good character and, in some offences, the personal circumstances of the offender.

Illicit importation of alcohol and tobacco was often associated with other criminal activities involving gangs. There had recently been an increase in violence towards and intimidation of customs officers and ferry staff. Illicit alcohol and tobacco could pass more readily to under- aged consumers, and such goods were often transported in overloaded vehicles, to the hazard of other road users. Legitimate traders were unfairly deprived of business.

The courts needed to distinguish between three broad categories of offenders: those who imported comparatively small quantities on a few occasions; those who, acting on their own or possibly with one other, persistently imported greater quantities; and those in organised gangs who were involved in importation on a large commercial scale. There was a need for a deterrent element in sentencing, particularly when significant amounts of duty were evaded, by repeated organised expeditions, leading to distribution on a commercial scale. In those cases, good character and personal circumstances would offer comparatively little mitigation.

The following guidelines for sentencing levels by reference to the amount of duty involved were suggested: cases involving less than pounds 10,000 would frequently be properly dealt with by magistrates, but in any event when the amount evaded was in the thousands of pounds custody would generally be called for and, on a plea of guilty, sentences of up to six months would be appropriate; for amounts between pounds 10,000 and pounds 100,000, sentences of between six months and two years would generally be appropriate on a guilty plea; for amounts between pounds 100,000 and pounds 500,000, two to three years on a guilty plea and up to four years following a trial; for amounts in excess of pounds 500,000, sentences in the region of four years, increasing to the statutory maximum of seven years when pounds 1m or more in duty was evaded, with a suitable discount for a plea of guilty.

In exceptional cases, where many millions of pounds in duty were evaded, consecutive sentences might be appropriate, and the charge, in the alternative, might properly be conspiracy to cheat, which could attract higher sentences than those already indicated. In addition, in an appropriate case, the court should also consider exercising its power to make a deprivation order under s 43 of the Powers of Criminal Courts Act 1973, and to disqualify drivers under s 44 of the Act. Justices had a power to revoke licences, where licensees were involved.