Campbell, R v [2004] EWCA Crim 2333

Case No 200402356/A0[2004] EWCA Crim 2333
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 5th August 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MRS JUSTICE RAFFERTY
MR JUSTICE PITCHERS
Between
R E G I N ACrown-v-
Between
MICHAEL GEORGE CAMPBELL
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR G COCKINGS appeared for APPELLANT
J U D G M E N T
[1]Mr Justice Pitchers: On 23rd March 2004 at the Crown Court at Croydon in front of Miss Recorder Wickham, this appellant was convicted of being knowingly concerned in the fraudulent evasion on the prohibition or restriction on importation of a class B drug, namely cannabis, and sentenced to seven years' imprisonment. The learned Recorder also imposed a travel restriction order under section 33 of the Criminal Justice and Police Act 2001 for a period of ten years, expressed by her to run from the date of sentence.[2]He appeals against sentence with leave of the single judge.[3]On 26th April 2003 the appellant came back to this country from Kingston, Jamaica, and went through the green channel at Gatwick Airport. He was stopped and questioned. He told the Customs officer that he had been to Jamaica to attend an aunt's funeral. He was asked to open his suitcase. As the Customs officer opened it, the appellant stated that the suitcase was not his. She then took his shoulder bag, which he confirmed belonged to him. Another of her colleagues went to the conveyer belt and found an identical suitcase with a luggage label which had his details on it. The first suitcase was examined and found to contain 13 packages of cannabis resin, weighing in total just under 17 kilogrammes with a street of value of £51,000. They were packed amongst some lady's clothing. The luggage label had another's person address on it which was later found to be false.[4]He was arrested. In interview he denied knowledge of the suitcase, insisting he had only checked in one bag at Kingston Airport. His documents revealed that he had checked in with two bags. It was the Crown's case that he ripped off the sticker from one bag on the outward bound journey in order to demonstrate, as he had hoped, that he had only taken the one bag from Gatwick to Kingston.[5]He is 47 years old. He has the following extremely relevant previous convictions. In the 1980s he had two convictions for drug offences in Jamaica; the exact nature of which is not clear from the record. He was also imprisoned for 20 weeks in 1984 for fraudulent evasion of chargeable duty or prohibition under the Customs and Excise Management Act. More recently, on 15th December 1993, for importing a controlled drug he was fined £120. On 22nd February 1995, for importing a controlled drug, he was made subject to a Community Service Order. Then on 11th January 2001 for being knowingly concerned in the fraudulently evading duty chargeable on goods, again class B drugs, he was sent to prison for 27 months. It follows, therefore, that the present offence was committed shortly after the expiry of his last sentence. It was those facts that led the Recorder to say, correctly in our judgment, that the appellant was prepared to go on and on importing drugs and nothing would stop him.[6]The grounds of appeal drafted by counsel, and supported by Mr Cockings this morning in admirably succinct and relevant arguments, were two-fold: firstly, that the sentence of seven years was manifestly excessive; and, secondly, that the travel restriction was too long in itself and, in any event, was wrongly ordered to run from the date of sentence.[7]Dealing, firstly, with the sentence of imprisonment. There is no doubt that if this was the appellant's only drug offence the sentence of seven years was above the normal level of sentence for importing this amount of cannabis: see the well-known cases of Aramah 76 Cr App R 190 and Ronchetti [1998] 2 Cr App R(S) 100. In the latter case this Court made clear that that sort of level of sentencing was appropriate for amounts of about 100 kilogrammes. However, neither of those cases considered the situation where a defendant has demonstrated that he will continue to import drugs whatever the courts may do. In our judgment, defendants of that sort, who may believe that the risk they run is outweighed by the rewards that they hope for, must expect significantly longer sentences than would be imposed for a single importation. However, the question remains whether this sentence takes that principle too far.[8]In our judgment, it does, but not by much. In our judgment, the appropriate sentence here, bearing in mind this appellant's record, would have been a sentence of six years' imprisonment. The appeal will be allowed to the extent of reducing the sentence of seven years to one of six years.[9]Turning now to the travel restriction order. That is an order made under section 33 of the Criminal Justice and Police Act 2001. So far as it is relevant section 33 is as follows:
"(1)(a) [where] a person ('the offender') has been convicted by any court of a post-commencement drug trafficking offence; (b) the court has determined that it would be appropriate to impose a sentence of imprisonment for that offence; and (c) the term of imprisonment which the court considers appropriate is a term of four years or more." then the court is bound to impose a travel restriction order with a minimum period of two years."
[10]So far as the time from which it runs is concerned, that is contained in section 33(3), where, under subsection (a), any order begins from the offender's release from custody. It is that subsection which also deals with the minimum period.[11]It is clear, therefore, that this was a case which called for a travel restriction order. It is clear, also, that order must run from the date of release. Therefore the expression of intention by the Recorder that it should run from the date of sentence was incorrect.[12]Thirdly, so far as the length is concerned, we have been helpfully referred to the recent case of Mee [2004] EWCA Crim 629, where this Court had to consider a similar order. In giving the judgment of the Court, Newman J said this at paragraph 14:
"Having regard to the impact of the restrictions, the length of an order should be measured to the defendant. Some factors can be enumerated by way of example; his ages, his previous convictions, the risk of reoffending, which can be assessed generally, and of course, as we have mentioned, family contacts, employment considerations and so forth. The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts. But, as we have said, it should be tailored to the defendant to such a degree as the court feels able when balanced against the risk."
We agree with those words of that Court of Appeal.[13]Against that background, we consider what the appropriate length of sentence of order should be in this case. The appellant's record shows that he poses a real risk for future importations. Therefore an order longer than the minimum required was appropriate. However, an order of the length of ten years was not justified in this case, nor indeed an order which would have the same effect, since it will run from his date of release. In our judgment, the appropriate length of order here would have one of five years. We substitute that term for the ten years imposed by the learned Recorder.[14]To that extent, in those two respects, this appeal is allowed.