Szmyt, R v [2009] EWCA Crim 1507

Case No 200806708/b3[2009] EWCA Crim 1507
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 6 July 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE JACK
MR JUSTICE RODERICK EVANS
Between
R E G I N ACrownv
Between
TOMASZ SZMYT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr M Bisgrove appeared for AppellantMr T Dunn appeared for Crown
J U D G M E N T
[1]MR JUSTICE JACK: On 1 December 2008 in the Crown Court at Canterbury the appellant, Tomasz Szmyt, was convicted of attempting to import a class A drug, MDMA or ecstasy, and was sentenced to six years' imprisonment. He had previously pleaded guilty to importing cannabis and he received a concurrent sentence for that of ten months. The judge left any decision as to deportation to the Home Office. He appeals against sentence.[2]The appellant is now aged 30. He is Polish. On 18 June 2008 he arrived at Coquelle in France driving a Polish registered car. In answer to Customs officials he said he was coming from Poland, where he lived, to visit his brother-in-law who was in hospital in England. The car was searched. In a boot was a television which the appellant said was his. In the television were hidden 1998 tablets with the appearance of ecstasy tablets and also just over 2 kilogrammes of cannabis. The cannabis would have been worth about £6,000 on the street and the tablets about the same had they been ecstasy. In fact the tablets contained no ecstasy and were harmless. When he was interviewed the appellant said he had found the television dumped by a bin in a service station.[3]The appellant had originally been charged with the importation of MDMA as well as cannabis and he had pleaded guilty to both charges before magistrates. Then it was found that the tablets contained no MDMA and the charge was altered to one of attempt and he pleaded not guilty. The appellant's defence statement said that he had been unaware of the tablets in the television and he thought he was only importing cannabis. The trial turned on whether the appellant knew of the tablets and whether he believed them to be ecstasy. He was convicted as we have said. His application for leave to appeal against conviction has not been renewed following refusal by the single judge.[4]The judge was not asked to order a pre-sentence report and he decided that one was unnecessary. There was nothing against the appellant in this country, save that he had received a caution in March 2008 for possessing an offensive weapon in a public place. He had then been living in England.[5]In the course of passing sentence

the judge said:

"I have heard about previous brushes with the law in Poland, including one relating to drugs, but just as in cases of this kind his personal mitigation only plays a limited role, I think it fair to say that, as I know little about these other matters, it is right that I take little account of them."
[6]The judge said that he was prepared to treat the appellant as a courier because there was no evidence that he was more. As the appellant had lied about his knowledge of the tablets and the evidence suggested that he had been involved in concealing the drugs in the television this may have been a generous conclusion but we will proceed on the basis of it.[7]In addition to what the sentencing judge had before him we have a prison report dated 15 May 2009. It is favourable to the appellant but it is to be expected that a prisoner will behave well.[8]Guidance as to the level of sentence for importation of ecstasy was given by the Lord Chief Justice, Lord Taylor, in Warren and Beeley [1996] 1 Cr App R(S) 233, where it was stated that, depending on the strength of the drug, the importation of 5,000 or more tablets would merit sentences of ten years or above, and 50,000 or more would merit 14 years or above, in each case following trial. It was stressed that the quantity or weight of the drug was but one factor. It was said that a tablet usually contained 100 milligrammes of drug.[9]The sentences passed in that case following pleas of guilty were reduced by this court for the importation of 1011 tablets to five years and for the importation of 1585 tablets to six years. Both men in Warren and Beeley were couriers.[10]The decision in Warren and Beeley proposes that the sentence should reflect the strength of the drugs. We must presume that the appellant believed that he was importing tablets of a typical or usual strength, but we accept that although the moral culpability remains the same, the sentence should reflect the fact that the tablets contained no ecstasy. That was the approach of this court in Wolin [2005] EWCA Crim 3006 where the court drew on the cases of Patel and Varshney [1995] 16 Cr App R(S) 267 and Afzal and Arshad (1992) 13 Cr App R(S) 145, the last two being cases concerning the importation of very low purity heroin.[11]Mr Michael Bisgrove who has appeared for the appellant referred us in his written submissions to the case of Noevers [2001] Cr App R(S) which involved 2000 tablets containing 592 grammes of ecstasy. There was also 4.88 kilogrammes of what was found to be caffeine. The defendant was charged with attempted importation of amphetamine sulphate in addition to importation of ecstasy. He was a courier and had undertaken the delivery because he was in debt. The court took a favourable view of his character and circumstances. He was sentenced to five years on the ecstasy count and two years consecutive on the attempt to import amphetamine, so a total of seven years. The sentence of five years was reduced by this court to four, making a total of six. That was a lower sentence than that passed on Warren in the case of Warren and Beeley for possession of 1,000 tablets and is to be explained by the court's view of how Noevers was drawn into the offence and his previous good character.[12]Here on the basis of Warren and Beeley we would have expected a sentence of six and a half to seven years had the tablets imported contained a normal amount of ecstasy. That is to be reduced to reflect the fact that this was an attempt and there was not ecstasy. Accordingly, we consider that a sentence of four and a half years rather than six was here appropriate. To that extent the appeal is allowed.