Jersey Unreported Judgments

Superior Number Appeal - fraudulent evasion of duty on goods - reasons for dismissing the appeal.

[2023]JRC200

Royal Court

(Samedi)

26 October 2023

Aaran Howard Eastwood

-v-

The Attorney General

Advocate L. A. Ingram for the Appellant.

Ms L. B. Hallam,  Crown Advocate.

JUDGMENT

THE BAILIFF:

1.        On 20 March 2023, we dismissed an appeal brought by Aaran Howard Eastwood ("the Appellant") against a sentence imposed by the Inferior Number of this Court (the Deputy Bailiff and Jurats Crill and Le Cornu presiding) on 16 December 2022 (AG v Eastwood and De Andrade [2022] JRC 294) whereby the Inferior Number sentenced the Appellant to 15 months imprisonment for being knowingly concerned in the fraudulent evasion of the duty chargeable imported on goods contrary to Article 61(2)(a) of the Customs and Excise (Jersey) Law 1999 and one month imprisonment concurrent with respect to a charge of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods contrary to the same Article and Law.

2.        In imposing these sentences, the sentencing court departed from the conclusions of the Attorney General which had been to the effect that Count 1 should be met with 180 hours community service and Count 2 with 40 hours community service, concurrent.

3.        A declaration of benefit and confiscation order was made together with an order for the forfeiture and destruction of the tobacco and cigarettes seized, although these items do not form part of the instant appeal.

4.        When dismissing the appeal, this Court said that it would set out its reasons on a subsequent occasion.  These, in brief, are those reasons.

5.        There was no dispute as to the factual background to the case and what it was that the Appellant had done.  The facts were characterised by the sentencing court in its judgment and we do not propose to set them out at any great length.

6.        In essence, between October 2020 and October 2021, the Appellant had deliberately, frequently and covertly imported very significant amounts of tobacco and cigarettes into the Island so as to evade the duty payable on those items.  The sentencing court characterised the Appellant in the following way:

"You were in effect a professional importer of such goods running, in our view, an unlawful business.  You would buy duty free hand-rolling tobacco and cigarettes from airports such as Heathrow and Gatwick and arrive at the airport in Jersey and thereafter distribute the duty free items you had purchased, which were far in excess of the personal limits of 200 cigarettes and/or 250 grams of hand-rolling tobacco and you did so at a profit."

7.        The sentencing court described the amounts which were imported by the Appellant as very significant and gave an example in the following terms:

"On one occasion for example you purchased to import into Jersey 4,000 cigarettes from Heathrow Terminal 5 at a cost of £812.  On another occasion you purchased 8 kilograms of tobacco from Heathrow airport and 1,600 cigarettes at a cost of £1,799 and a total value of the importations into Jersey alone in respect of the duty you evaded comes to £24,600 which represents 37 kilograms of tobacco and 11,200 cigarettes."

8.        The Court then went on to reflect that the telephone records showed that the Appellant was purchasing duty free cigarettes to be sold on and further by way of characterising the gravamen of the offending, the sentencing court at paragraph 9 of its judgment said:

"Your conduct in the period shortly prior to your arrest is demonstrative, in our view, of the profits that you were making.  On 5 October 2021 you flew from Jersey to Heathrow purchasing 4,000 cigarettes from Terminal 5, then 1,200 from Terminal 5 so a total there of 5,200 cigarettes.  Some of those appear to have been sold in the UK.  Then you travelled to Gatwick, purchased 3,600 cigarettes and then again at Gatwick on the same day half an hour later another 2,400 so at Gatwick that morning having purchased 5,200 cigarettes in Heathrow you purchased 6,000 at Gatwick.  Those 6,000 cigarettes were confiscated from you, the ones you bought in Gatwick, by the UK border force half an hour after your last purchase but you were not remotely discouraged by this as later on that day you took a flight from Heathrow to Jersey and there you breached airport security, made your way from Arrivals to the shop in the Departures hall and purchased another 1,000 cigarettes which demonstrates both your confidence, and in our view your arrogance, and the profits you were making from this unlawful business."

9.        The judgment of the sentencing court also reflects that the Appellant was not fully co-operative.

10.      It is quite clear both by the characterisation given to the offending and indeed by express words that the sentencing court viewed this offending as serious.  The concern, and indeed the approach of the sentencing court to the sentencing is perhaps illustrated by the following quotations from the judgment:

At paragraph 15, the Court said:-

"These were on any view serious offences. ... These are offences which are committed against every taxpayer.  In jurisdictions such as Jersey, import duties are an important source of public revenue and every taxpayer is a victim of a fraud on the treasury carried out in this way."

"16.  There are strong policy reasons for offences such as this to be met with immediate custody if that offending is serious and certainly in our view this was serious.  Secondly there are good reasons for the duty, high as it is, to be imposed as it is on tobacco and cigarettes.  Cigarettes kill, and both cigarettes and tobacco present harms to public health.  The costs of the health service of those addicted to cigarettes and tobacco are substantial.  People's lives are affected.  A cheap illicit black market in tobacco and cigarettes undermines public health.  In the same way that Jersey has developed its own sentencing regime to ensure the penalties for importing controlled drugs whether Class A or Class B are robust, it should in our judgment adopt a similar policy in respect of those who fraudulently evade duty by importing, in your case Eastwood, and distributing, in your case De Andrade, tobacco and cigarettes."

11.      The Court then considered the role played by sentencing guidelines from England and Wales but indicated that these were of no assistance "for the reasons of policy I have described ... otherwise there is a risk that Jersey will become a magnet for those wishing to unlawfully import cigarettes and tobacco at profit undermining, as we have said both the Exchequer and public health."

12.      Lastly, at paragraph 18 the Court characterised the Appellant's offending as "a well planned and sophisticated offence and amounted to fraudulent activity conducted over a substantial period of time."

13.      It is clear, therefore, that the sentencing court approached the sentencing in this case as a matter of policy and took the view that it was sentencing serious offending for which a custodial disposal was in its view inevitable.

14.      There are very few cases dealing with this type of offending in Jersey and the Court rightly indicated that cases related to penalties imposed against companies, which of their nature can only be financial, did not assist when, as here, an individual was being considered.

15.      The case of AG v Sutton and McDermott [2015] JRC 144 was also cited to the Court.  In that case, individuals had committed substantial importation offences and, although the Crown had moved for the imposition of fines, the Court imposed community service.  In that case, the Court was satisfied that the custody threshold had been passed.

16.      The Appellant argued that the sentence was manifestly excessive in the light of the sentences that had been imposed in the past and indeed in the light of the judgment of the sentencing court, which had failed to deal with the individual items of mitigation that had been put before the Court for consideration by Defence counsel.  A number of such items were listed before us and it is clear that the sentencing court did not address each of them in its judgment.  Instead, it dealt with the mitigation in an abbreviated form when, in paragraph 20 of the sentencing court's judgment it said:

"It should be plain from what we have said that we are satisfied that these offences in respect of Counts 1 and 3 on the indictment are serious.  In respect of Count 1 on the indictment giving credit, as we have said for your plea of guilty Mr Eastwood, and all that has been said on your behalf and all the mitigation appearing on the papers the least sentence we can impose and do impose is 15 months imprisonment.  On Count 2 the sentence is 1 month imprisonment to run concurrent."

17.      The Appellant argues that this simply does not tell the Appellant what mitigation was accepted by the sentencing court, what weight it was given and why the sentencing court departed from the recommendations of the Attorney General for community service.  The Appellant argues that when departing from the sentence recommendation from the Attorney General, the Court is under an obligation to explain exactly why and, so it is also argued, that should include a detailed consideration of the points advanced by way of mitigation.

18.      It will often be the case that there is a real benefit in explaining in sentencing remarks or in a written judgment precisely what view the Court has taken of available mitigation.  This was not, in our judgment, such a case.

19.      Firstly, we take at face value that the Court had given due consideration to all of the points advanced by way of mitigation as it said it did.  Secondly, and at least as importantly, it is clear that the Court was adopting an approach based on the view of the seriousness of the offending and the public policy reasons for considering it as serious as set out in the sentencing judgment.  We accepted the Crown's contention that the sentencing court's judgment, read as a whole, provides a clear explanation for the reasons for imposing a custodial sentence.  We have made reference to the facts of this offending which in our view fully supported the sentencing court's judgment.

20.      We are of course sitting as the Superior Number and ultimately matters of policy fall to this Court in these circumstances for consideration and approval or disapproval as the case may be.

21.      The principles against which this Court will consider an appeal against sentence are reasonably well-established.  In Harrison v AG [2004] JLR 111 at paragraph 31 the Court of Appeal said this:

"[Circumstances in which we may interfere are therefore restricted to] (a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law; (b) where a sentence has been passed on the wrong factual basis; (c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive."

22.      It will not generally be the case that the Appellate courts will interfere with sentences that are not manifestly excessive and are within the powers of the sentencing court.  In Morgan and Schlandt v AG [2001] JLR 225 the Court said:

"It is not the function of this Court to tinker with sentences which were well within the range open to the sentencing court simply because we might ourselves have fixed a lower term of imprisonment."

23.      In Barrett v AG [2011] JCA 105 the Court said:

"The principles which apply and are followed in Jersey are set out in the judgment in Att Gen v Sampson (1965) JJ at 499 and Harrison v AG [2004] JLR 111, noting that "the Court will not alter a sentence merely because members of the Court might have passed a somewhat different sentence".

24.      We expressly approve the characterisation of this matter given to it by the sentencing court.  It is indeed serious and the public policy matters raised in the sentencing court's judgments are important and justify the imposition of a sentence which not only has appropriate punitive effect but is of a significant deterrent nature as well.

25.      In our judgment, a sentence of imprisonment was in this case not only within the range of appropriate sentences that the sentencing court could consider but quite clearly appropriate.  We see no problem in principle with such a sentence as to its type nor indeed as to its length.

26.      In our judgment, the sentence was neither manifestly excessive nor wrong in principle and we reject the appeal.

Authorities

AG v Eastwood and De Andrade [2022] JRC 294. 

Customs and Excise (Jersey) Law 1999. 

AG v Sutton and McDermott [2015] JRC 144. 

Harrison v AG [2004] JLR 111. 

Morgan and Schlandt v AG [2001] JLR 225. 

Barrett v AG [2011] JCA 105