England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th February 2008

1. Mr Justice Coulson: The applicant is 32. He is Romanian. On 23rd April 2007, at the Crown Court in Chester, he pleaded guilty to conspiracy to facilitate the unlawful entry of individuals into the United Kingdom. His basis of plea, which sought to minimise his involvement, was not accepted by the prosecution and on 21st and 22nd August there was a Newton hearing before His Honour Judge Edwards, the Recorder of Chester. The learned recorder found in favour of the prosecution and so ruled at the end of the hearing. He concluded that the applicant was the main organiser of this conspiracy which facilitated the entry of a total of 18 unattached children into the United Kingdom. The learned recorder sentenced the applicant to eight years' imprisonment and recommended deportation.
2. The single judge refused leave to appeal against that sentence, observing that:

"This application is wholly without merit."

3. Despite that, the applicant renews his application to the Full Court. It is right to say that such points as were available to the applicant have been cogently argued before us by Miss Harris.
4. It is necessary to set out some of the facts in detail. The applicant was found to be the principal organiser of a scheme in which he engaged other adults, including his co-accused Anna Puzova, Dusan Badi and Zdenek Kirvej, to go to Europe and bring back Romanian children to the United Kingdom. He ran the scheme as a business for profit.
5. Anna Puzova made a total of eight trips, on each occasion flying alone and returning with one, two or three children of both sexes. A total of 16 children entered the country with her in this way.
6. The final trip was on 15th May 2006. She flew from Turin and arrived at Stansted Airport accompanied by three children whom she claimed as her own. However it was noted that two of the children did not communicate with Puzova and seemed not to share a common language with her. She was then arrested on suspicion of facilitating the unlawful entry of the children. Telephone evidence showed that she had been in regular contact with the applicant around this time.
7. When interviewed she made admissions, saying that she had been paid by a man she knew as "Reymus", (the applicant), to travel to Italy and bring back three children she was to present as her own. She said she had been given £500 to cover the flights and expected to be paid a further £500 to £600 for making the trip. Those expenses, we note, demonstrate the sort of profits that the applicant was making from this trade.
8. The children, aged 13, 14 and 15, were also interviewed. Two said that they lived in Romania with family members. Both were told they had blood relatives in the United Kingdom. They had travelled in a mini-bus with others with a man who was known to help people travel out of Romania. He took them by road to Italy where they spent the night in a tent. The next day they met Miss Puzova who coached them with the names which were on her passport. They were told to speak as little as possible and avoid eye contact. The children were placed in the case of the local social services and returned to Romania some days later, but not to families who indicated they had received payment for the children.
9. Miss Puzova was further interviewed on a number of occasions and admitted facilitating entry on six previous occasions, resulting in a further 13 children being entered into the United Kingdom illegally. She subsequently pleaded guilty and she was sentenced at Wood Green Crown Court to three years' imprisonment.
10. On 6th May 2006 the co-accused Badi and Kirvej flew from Stansted to Barcelona. They returned the same day with a girl whom they falsely claimed was Kirvej's daughter. On 30th May Badi and Kirvej were detained at the French end of the Channel Tunnel. They were in the applicant's car. Also in the car was another man travelling on a false passport, purporting to identify himself as Badi's son. They subsequently pleaded guilty at Canterbury Crown Court and were each sentenced to 30 months' imprisonment.
11. The applicant was arrested on 18th December 2006 at HM Prison Altcourt where he was serving a sentence for dishonesty offences. His home address was searched the same day. The police there found a variety of documents in different names and pieces of evidence indicating his lifestyle. There were documents relating to money transfers and the pawning of large quantities of jewellery. Electrical equipment, mobile telephone and sums were recovered. He had no known legitimate source of income.
12. Initially at interview the applicant denied being involved, but accepted that he had used a number of different identities. He initially denied knowing Miss Puzova. Eventually he accepted his role as an organiser of some of the facilitations, including all of Miss Puzova's trips and those made by Badi and Kirej. He said that the purpose was to reunite the children with their families. He claimed to receive £200 per child.
13. Enquiries revealed that the tickets for the trips abroad were booked, often via the internet, by others on behalf of the applicant.
14. The co-accused, as we have noted, were all sentenced before the Newton hearing before the learned recorder. Following that hearing, the learned recorder ruled that, whilst Miss Puzova had made seven trips in total, bringing back, or attempting to bring back, 15 children, it was the applicant who had organised the whole enterprise. The learned recorder also found that he was responsible for bringing in other children using the other co-accused. The learned recorder concluded that the applicant had lied when giving evidence at the Newton hearing during which he had attempted to implicate his father-in-law.
15. When sentencing the applicant the learned recorder said this to the applicant:

"You organised this evil trade in facilitating the illegal entry of children into the United Kingdom. You did so between 7th November 2005 and 30th May 2006. You organised the trade efficiently and well. You planned it and executed it through others. You did so for profit and the persons involved were children who are even more vulnerable than adult illegal entrants. I make no assumptions because I cannot as to what has happened to the 13 children whose whereabouts are entirely unknown but one thing is certain, they have disappeared as far as the authorities in this country are concerned."

16. Those were all matters that the learned recorder then regarded as aggravating factors for the purpose of his sentence.
17. We agree with every word of those remarks. The trade in which children are brought unattached and unaccompanied illegally into the United Kingdom was rightly described by the learned recorder as an evil trade and those involved in it must know that the courts will impose severe terms of imprisonment in consequence.
18. On this renewed application there are two matters with which we have to deal. The first is whether the sentence was too long as a matter of principle, and the second is whether the sentences were too long by comparison with the applicant's co-accused.
19. As to the first point, the guideline case is R v Le and R v Stark [1999] 1 Cr App R(S) 422 (BAILII: [1998] EWCA Crim 2785 ). We note that that was a case that occurred when the maximum sentence for this sentence was seven years. In giving the decision of the court, Lord Bingham CJ said:

"There are indeed a number of features which may aggravate the commission of this offence. One aggravating feature plainly is where the offence has been repeated and the defendant comes before the court with a record of violations of this provision. It is also an aggravating feature where the offence has been committed for financial gain, and it is an aggravating feature where the illegal entry has been facilitated for strangers as opposed to a spouse or a close member of the family. In cases of conspiracy it is an aggravating feature where the offence has been committed over a period, and, whether or not there is a conspiracy the offence is aggravated by a high degree of planning, organisation and sophistication. Plainly the more prominent the role of the defendant the greater the aggravation of the offence. It is further aggravated if it is committed in relation to a large number of illegal entrants as opposed to one or a very small number. Lastly, of course, the maximum must cater for the case in which the defendant has contested the charge and so failed to earn the discount which a plea of guilty would have earned. The more of those aggravating features that are present, the higher the sentence will be ..."

20. When he made his remarks the learned recorder correctly listed the matters which were regarded as aggravating features. Other than the guilty plea, which of itself is of little weight given the limited basis on which it was given and that it was necessary to have a Newton hearing, all of the other aggravating features identified by Lord Bingham in R v Le are, in our judgment, present in this case.
21. The other authority to which we were helpfully referred by Miss Harris was R v Jarneil Singh Saini [2005] 1 Cr App R(S) 62. That was a case of a nine month conspiracy with a number of similarities to the present case. The principal behind the conspiracy received a sentence of seven and a half years. One of the principal differences between that case and this is that, as we have already noted, this case was concerned with vulnerable unattached children, 13 of whom, as we have noted, are unaccounted for. Although Miss Harris points out that the conspiracy in Saini had some of the hallmarks of greater sophistication, we do not accept that there is any significant difference between the underlying conspiracy in that case and the underlying conspiracy perpetrated by the applicant here.
22. For those reasons, therefore, we conclude that the sentence of eight years was entirely in accordance with the previous decisions of this court, and that, given the aggravating features, that sentence cannot possibly be regarded as manifestly excessive.
23. The parity point can, we think, be dealt with fairly shortly. The terms of imprisonment for the co-accused were of shorter duration because they were men and women with a far smaller involvement in this conspiracy than the applicant. The applicant was the principal. He paid them to do what they did. He was running the whole operation. That was the whole purpose of the Newton hearing; to determine the degree to which it could fairly be said that the applicant was the principal of this conspiracy. Following the learned recorder's ruling, it was therefore inevitable that the applicant would receive a considerably longer term of imprisonment than his co-accused. Accordingly, with respect to Miss Harris, we conclude that there is nothing in the parity point.
24. For those reasons, therefore, we consider that this application is hopeless. We have given careful consideration to whether or not we should order that the time spent as an applicant should not count towards the sentence. However, Miss Harris has informed us that she cannot say that the applicant, who was principally responsible for the renewed application, had understood fully the consequences of a renewed application. In those circumstances, and in deference to the careful way in which Miss Harris made her submissions, we have concluded that in this case we will not make such an order. However we reiterate that in cases where the appeal is regarded by this court as hopeless, such orders can and will now be made.