Haywood & Ors, R v

Large-scale and sophisticated commercial trafficking in counterfeit medicines, carried out for substantial profit, merits substantial immediate custody. A disparity between co-offenders’ sentences warrants appellate intervention only where it is objectionable, having regard to their respective roles, additional offending, pleas and mitigation.

A plea offered after a fully contested trial on a false basis is a late plea and may properly attract only limited credit. An appellate court will rarely alter a costs order absent an error of principle or a manifestly wrong result; a claim of insufficient means cannot succeed where the offender has withheld full financial disclosure. The statutory jurisdiction to appeal a sentence does not extend to an order that counts lie on the file.

Haywood and Halai appealed sentences imposed at Kingston-upon-Thames Crown Court after convictions concerning a sophisticated international trade in counterfeit Viagra, Cialis and Propecia. Haywood was sentenced after trial to six years’ imprisonment. Halai, who pleaded guilty shortly before trial, received four and a half years.

Patino’s application for leave to appeal was granted. After pleading guilty before a retrial to a more limited trademark conspiracy, he received three years’ imprisonment, a confiscation order, a £50,000 prosecution costs order, and an order that remaining counts lie on the file.

The court considered whether the custodial terms were manifestly excessive, whether Haywood’s sentence created an objectionable disparity, whether Patino’s costs order exceeded his means, and whether it had jurisdiction to review the order that counts lie on the file.

1. All three appeals were dismissed. The counterfeit-medicines enterprise was a sophisticated and highly profitable commercial fraud. Its scale, the risks to confidence in medicines, and the appellants’ important roles justified substantial custody. Haywood’s six-year total was not excessive and could have been higher without his mitigation.

2. There was no objectionable disparity between Haywood’s sentence and Halai’s four-and-a-half-year total. Halai led receipt and distribution from the United Kingdom, but Haywood was the vital supplier, had no guilty-plea credit, and was also sentenced for money laundering. Halai’s late plea, good character and personal mitigation had been properly reflected. His total was not manifestly excessive.

3. Patino’s plea followed a first trial which he had contested on a materially false denial of involvement. It was therefore a late plea deserving only limited credit. Although the admitted conspiracy was narrower and shorter than the original allegations, the judge had allowed for that distinction. Given Patino’s role, medical qualifications and the scale of the trade, the three-year sentence was severe but not manifestly excessive.

4. The £50,000 costs order disclosed neither an error of principle nor a manifestly wrong outcome. Patino had contested the first trial and was properly held responsible for part of its costs. His assertion that the amount exceeded his means failed because he had not provided full disclosure of his assets, including overseas properties.

5. The court had no jurisdiction on a sentence appeal to review the order that other counts lie on the file. Under the Criminal Appeal Act 1968, an appeal against sentence did not encompass that order, and there was no leave to appeal against conviction. The court also doubted, without deciding the point, that the order breached Article 6(1) of the Convention.

• Court of Appeal (Criminal Division): dismissed Haywood’s and Halai’s appeals against sentence and, after granting Patino leave to appeal, dismissed each of Patino’s challenges to sentence, costs and the order that counts lie on the file.
• Kingston-upon-Thames Crown Court: Judge Price QC imposed the sentences and ancillary orders challenged on appeal.