Tsoulfaidis, R. v [2006] EWCA Crim 1539

Case No 200601285 A9

[2006] EWCA Crim 1539

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 3 May 2006

Strand

London, WC2

B E F O R E:

LORD JUSTICE LATHAM

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

MR JUSTICE NELSON

SIR RICHARD CURTIS

Between

R E G I N ACrown

-v-

Between

AVRAM TSOULFAIDIS

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MR G HOLME appeared for APPELLANT

MR CWD AYLETT appeared for CROWN

J U D G M E N T

LORD JUSTICE LATHAM:

[1]This is an application on behalf of the Attorney General for leave to refer to this court, under section 36 of the Criminal Justice Act 1988, a sentence of 12 years' imprisonment which was imposed on this offender for the offence of being knowingly concerned in the importation of 50 kilograms of heroin. The sentence was imposed by HHJ Critchlow on 13 February 2006 after a retrial, the first jury having failed to agree on a verdict in relation to this offender.

[2]The facts of the case are as follows. At the time that the offence was committed, he was living in Greece. On 5 March 2005, he and his brother-in-law, Vladimir Khatsidis, caught a ferry from Patras in Greece bound for Ancona in Italy. There they met a German registered DAF lorry, which had also travelled from Greece to Italy, and was part-owned by this offender's brother-in-law. They took over (that is, the offender and his brother-in-law), the driving of the DAF lorry, and drove it through Italy across France, and on 8 March 2005 arrived at Dover.

[3]The lorry was then driven from Dover to Clacket's Lane service station on the M25, where the offender and his brother-in-law waited until another man, Faton Mula, arrived in a Peugeot car. The lorry and the car then travelled in convoy to a farm near Slough. Whilst at the farm, a fuel tank was removed from the lorry, using a forklift truck. The offender and his brother-in-law then drove the lorry away from the farm and were arrested shortly after leaving. Faton Mula also left the farm and was, himself, arrested nearby.

[4]The police subsequently discovered, on the roadside verge near where the lorry had been stopped, a bundle containing 43,000 Euros. It later became apparent that that was money which had been received by the offender and his brother-in-law, and had been thrown out of the window of the lorry either at or shortly before the time of their arrest.

[5]The police then searched the farm and found the petrol tank still on the forklift truck. It was opened and inside there was a secure container in which the heroin was found. The total weight of the consignment was nearly 60 kilograms. When analysed, it yielded 29.1 kilograms at 100 per cent purity. The wholesale value of those drugs is said to be £850,000, with a a street value in the region of £2.75 million.

[6]When he was interviewed, the offender admitted that he and his brother-in-law had driven the lorry from Italy to Dover. He further admitted that whilst at the farm the petrol tank had been removed from the lorry and said that his brother-in-law had been given some money; but he denied that he had any knowledge of the heroin within the fuel tank.

[7]The investigations by the police established that Faton Mula had been the person who had given the money to the offender and his brother-in-law. His task had clearly been not only to convey the money, but also to direct the offender and his brother-in-law to the farm. He had obtained the money from a man, Albert Kurtisvek, who was clearly the person who was responsible for selling the drugs to the market in this country.

[8]The trial originally was a trial of Kurtisvek, Mula, Khatsidis -- that is the offender's brother-in-law -- and the offender. Kurtisvek, Mula and Khatsidis were all convicted at that first trial but, as we have indicated, the jury failed to agree in relation to the offender.

[9]After the first trial, the judge sentenced Khatsidis to 20 years' imprisonment, Kurtisvek to 18 years' imprisonment, and Mula to 14 years' imprisonment. It is in that context that we have to consider the sentence of 12 years' imprisonment subsequently imposed on this offender.

[10]The offender is a man of hitherto good character; and the judge, in his sentencing remarks, gave him credit for that but considered that in itself that provided, as is almost inevitably the case, no substantial basis for reducing the sentence below what would otherwise be appropriate for importation of drugs of this quantity. He clearly had in mind the appropriate guideline cases and stated in his sentencing remarks that the starting point was 14 years' imprisonment.

[11]In his sentencing remarks, he said as follows:

"You are 42 years of age now, previously of good character, a married man and father of three children. I have seen now on two occasions your distress in the witness box and in the dock, and I am quite satisfied that you are full of remorse for what you did and bitterly regret ever becoming involved in this serious offence. "

Your brother-in-law, Mr Khatsidis, was the man who owned the DAF lorry that was involved, and I am quite prepared to state that your role was therefore much less than his in connection with what took place. In short, I am satisfied you were not the main organiser; more than that I cannot say."

[12]On behalf of the Attorney General, Mr Aylett has submitted that, bearing in mind that the starting point for the importation of substantial quantities of heroin should be 14 years' imprisonment, the amount involved here, and this offender's part in it, should have resulted in a substantially higher sentence than that starting point.

[13]We consider that there is some force in that submission. Indeed, one would have expected a sentence of somewhere in the region of 16 years' imprisonment in this case, bearing in mind the sentences on the co-defendants. However, what we have to consider is whether the sentence ultimately imposed by this judge was not merely lenient, as this undoubtedly was, but unduly lenient. The judge was entitled to take into account the matters that he clearly did in the sentencing remarks which we have cited. It is clear from those sentencing remarks that the judge who had the opportunity, denied to us, to make an assessment of the offender's part in this serious offence, considered that he could make a significant reduction in sentence. It is difficult for us to say that he was wrong. We would not have been surprised if, on the basis of those remarks, he had reduced the sentence from 16 years to one of 14 years, which would appear to be the appropriate sentence.

[14]In those circumstances, we have to ask ourselves whether we should interfere. However, bearing in mind double jeopardy and the judge's reference to the offender's demeanour during the trials, we do not consider that we should interfere.

[15]For the reasons that we have given, we give leave to the Attorney General to refer the sentence but we do not interfere with it. Accordingly, the sentence stands.