Dosanjh & Ors v R.

Where Parliament has expressly preserved the common-law offence of cheating the public revenue, with its penalty at large, it remains available for the small number of most serious and unusual revenue frauds. It may properly be charged where statutory offences would not adequately reflect the criminality. A sentence may therefore exceed the statutory maximum for comparable fraud or VAT offences.

The general preference for prosecution under a specific statutory offence does not prevent that result. The decisive question is whether Parliament has retained the common-law offence for a distinct role. In assessing sentence, a draft guideline which accurately reflects current practice may be a useful but non-binding starting point. Sentencing comparisons must account for the offenders’ roles and any distinctive aggravating criminality.

The appellants were convicted at Southwark Crown Court of conspiracy to cheat the public revenue through a sophisticated carbon-credit missing-trader intra-community VAT fraud. The fraud caused a loss of about £39 million. Dosanjh was a leading organiser. Gill and Chahal held organisational roles in the trading chains.

HHJ Testar imposed imprisonment terms of 15, 11 and 9 years respectively. The appellants appealed against sentence. Their principal submission was that a sentence for conspiracy to cheat the public revenue could not properly exceed the maxima for comparable statutory fraud or VAT offences. They also contended that the individual sentences were manifestly excessive, and Gill advanced a disparity argument.

1. The appeals were allowed in part. The court reduced Dosanjh’s sentence from 15 to 13 years, Gill’s from 11 to 10 years, and Chahal’s from 9 to 8 years.

2. The court rejected the submission that the common-law charge could not attract a sentence exceeding the maximum for comparable statutory offences. The general approach in R v Rimmington; R v Goldstein [2006] 1 AC 459 concerned a prosecutor bypassing statutory safeguards where Parliament had prescribed a specific offence. It did not conflict with this case. Parliament had expressly preserved cheating the public revenue through section 32(1)(a) of the Theft Act 1968 and had left its penalty at large.

3. That legislative choice gave the offence a distinct role. It supplements statutory fraud and revenue offences in exceptionally serious revenue frauds, where the statutory maximum would not adequately reflect the criminality. The court approved the established sentencing approach that such cases may justify sentences above those maxima.

4. A draft fraud guideline was a useful, though non-binding, starting point because it accurately reflected current sentencing practice. The fraud was highly sophisticated, cross-border and very substantial. Dosanjh was at or near the top of the hierarchy. Gill and Chahal played leading organisational roles below him, rather than merely acting as buffer traders.

5. The court rejected Gill’s disparity argument. The trial judge was entitled to attach considerable weight to the markedly different benefits received. However, the 15-year starting point for Dosanjh placed excessive weight on R v Randhawa [2012] EWCA Crim. The longer sentences in that case reflected additional aggravating offending. In the absence of those features, the proper benchmark for a principal organiser was about 13 years. Corresponding reductions were made for the other appellants.

• Court of Appeal (Criminal Division): Allowed the sentence appeals in part and substituted terms of 13 years for Dosanjh, 10 years for Gill and 8 years for Chahal: [2013] EWCA Crim 2366.

• Southwark Crown Court: The appellants were convicted of conspiracy to cheat the public revenue and sentenced by HHJ Testar to 15, 11 and 9 years’ imprisonment respectively.