Czyzewski, R. v

Sentencing for fraudulent evasion of excise duty under Customs and Excise Management Act 1979, section 170, must reflect the duty evaded, the sophistication of the operation, the offender’s role and personal profit. The court must also adjust the sentence for aggravating and mitigating factors.

The revised starting points are guidelines, not a straightjacket. At the lower end, non-custodial sentences may be appropriate. For evasion exceeding £100,000, custody will usually depend principally on professionalism and other aggravating features. Deterrence remains material in major fraud, and exceptionally large frauds may justify consecutive sentences or a charge of cheating the public revenue.

This conjoined sentencing appeal concerned five defendants convicted of, or pleading guilty to, offences of fraudulent evasion of excise duty on cigarettes or tobacco contrary to section 170 of the Customs and Excise Management Act 1979.

The Court used the appeals to revise the sentencing guidance previously given for alcohol and tobacco smuggling. It then considered the proper sentences for an organiser involved in consignments of 2.5 million cigarettes, a lorry driver and an organiser involved in a single importation, a repeat small-scale importer, and a subsidiary participant in a professional tobacco operation.

The central issue was the appropriate sentencing framework for duty-evasion offending and its application to the individual offenders.

1. The Court revised the sentencing guidelines for offences under section 170 of the Customs and Excise Management Act 1979. Sentencers must assess seriousness principally by reference to the duty evaded, the complexity and sophistication of the organisation, the offender’s function within it, and personal profit. They must then account for aggravating and mitigating circumstances.

2. Relevant aggravating features include an organisational role, repeated importations, professional smuggling, use of a legitimate business as a front, abuse of privilege, exploitation of vulnerable people, threats, contaminated goods and sales to under-age purchasers. Professionalism may be shown by a complex operation, financial records, multiple sources, commercial freight integration, sophisticated concealment, varied methods or routes, overseas links, and very substantial quantities of goods. A prompt guilty plea and co-operation may materially reduce sentence.

3. For a first offender after trial and without personal mitigation, the Court set starting points ranging from a fine or conditional discharge for very low-level offending to nine months’ custody for duty between £10,000 and £100,000. Where duty exceeds £100,000, the starting point is principally informed by professionalism and aggravation, with stated ranges rising from nine months to three years for £100,000 to £500,000, to five to seven years where duty exceeds £1 million. These are guidelines, not fixed tariffs.

4. The Court reaffirmed that deterrence is relevant in major revenue fraud. In exceptional cases involving many millions of pounds, consecutive sentences or a charge of cheating the public revenue may be appropriate. Sentencers should also consider confiscation, compensation, deprivation and driving disqualification, and should warn the defence if an additional order is contemplated.

5. Applying that guidance, the Court dismissed Czyzewski’s sentence appeal. It reduced Bryan’s sentence from two years and six months to nine months, Mitchell’s from four years to two years and six months, and Ward’s from nine months to six months. Diafi’s application for leave to appeal was refused.

• Court of Appeal (Criminal Division): In the present conjoined proceedings, the Court revised sentencing guidance and varied the sentences of Bryan, Mitchell and Ward. It dismissed Czyzewski’s appeal against sentence and refused Diafi leave to appeal.

• Crown Courts: Czyzewski was convicted at Birmingham Crown Court. Bryan and Mitchell were sentenced at Maidstone Crown Court. Diafi was sentenced at Isleworth Crown Court. Ward was sentenced at Leicester Crown Court following his guilty plea at Warwick Crown Court.