El Heri, R. v

In sentencing for a single conspiracy to evade VAT, the court may assess the gravity of the fraud as a whole. It need not allocate the lost revenue between the individual companies used as vehicles for the scheme. A sentence near the statutory maximum may be proper where the fraud involves very large revenue loss, elaborate fabrication and a leading role. On appeal, the question is whether the sentence is manifestly excessive; being at the top of the appropriate bracket does not itself establish excess.

The appellant was convicted at Kingston upon Thames Crown Court, following a seven-month trial, of conspiracy to evade VAT. The conspiracy used importing and middlemen companies in a missing trader fraud involving computer chips and substantial unpaid VAT.

He was sentenced to six-and-a-half years’ imprisonment. He sought an extension of time to apply for leave to appeal against conviction, alleging that a co-conspirator had acted improperly with Customs and Excise officers. He also appealed against sentence with leave of the Single Judge.

The issues were whether there was any basis to reopen the conviction and whether the sentence was manifestly excessive.

1. The court refused the application for an extension of time to seek leave to appeal against conviction, and refused a further adjournment. The alleged co-conspirator and the person said to have had improper dealings with Customs and Excise were different individuals. There was no evidence that the appellant’s co-conspirator had acted improperly, had been a participating informant, or had done anything affecting the safety of the conviction.

2. The appeal against sentence was dismissed. The offence was charged and proved as one conspiracy. The court therefore rejected an attempt to allocate the VAT loss between the separate bogus companies. Each conspirator had to answer for the whole fraud and consequent loss to the Revenue.

3. The sentencing judge was entitled to treat the fraud as highly serious. It involved revenue loss of about £8 million, a sophisticated and elaborate scheme, and the fabrication of many thousands of commercial documents. The appellant had also involved his son in the offending. The judge could properly assess the appellant’s criminality and responsibility after hearing the seven-month trial, and was entitled not to distinguish him from a co-conspirator who had received the same sentence.

4. Having considered the guidance in R v Dosanjh [1999] 1 Cr App R 107, the court held that the sentence was at the top of the appropriate bracket but was not manifestly excessive. The maximum sentence was seven years’ imprisonment, and the term of six-and-a-half years was upheld.

• Court of Appeal (Criminal Division): refused the application for an extension of time to seek leave to appeal against conviction and dismissed the appeal against sentence: [2005] EWCA Crim 1147.

• Single Judge of the Court of Appeal: refused the application concerning conviction on 27 October 2003; granted leave to appeal against sentence on 18 July 2002.

• Kingston upon Thames Crown Court: convicted the appellant of conspiracy to evade VAT on 15 February 2002 and sentenced him to six-and-a-half years’ imprisonment on 11 March 2003.