England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 29 March 2011

1. MRS JUSTICE DOBBS: On 19th July 2010 at the Southwark Crown Court, this 42-year-old applicant pleaded guilty on re-arraignment to being knowingly concerned in the export of controlled goods, contrary to section 68(2) of the Customs and Excise Management Act 1979. On 5th October 2010 he was sentenced to two-and-a-half years' imprisonment. The Registrar has referred his application for leave to appeal against sentence to the full court.
2. The facts underlying the conviction are as follows. On 18th February 2009, the UK Border Agency staff intercepted a consignment of goods at Heathrow Airport. In total there were seven boxes which were found to contain 100 Schmidt and Bender telescopic optical sights. They were due to be freighted to Hawk Freight Services in the Dubai Airport Freezone. The shipper was UWI Technologies in Lincolnshire. Two of the boxes contained delivery notes from Schmidt and Bender to UWI Technologies.
3. Each sight was marked to indicate that the magnification was from 3 to 12 times. Experts checked the sights and found the zoom function to be operational in each sight. Optical weapon sights with a magnification of five times or greater were on the military list, a schedule of items for which licences were required in order to control exports and ensure that military equipment was not sent to countries which should not have specific items. As such it was concluded that each sight required an export licence.
4. Enquiries revealed that UWI Technologies was this applicant. He was arrested on 23rd February 2009 and interviewed. He admitted attempting to export the sights. He stated that he had made enquiries to see if he needed a licence for such exports and concluded that none was required. He had thought they were scopes for hunting deer. An Italian man by the name of Mr Bon had bought the kit and wanted it exported to Dubai. He was paid €12,000 for the job. He later admitted in interview that the ultimate destination was Iran and that he needed a licence.
5. Schmidt and Bender confirmed that they knew Mr Bon and had sold the consignment to him. They thought the sights were going to Italy.
6. The various steps the applicant had taken to get the sights to the airport were traced. His laptop computer was seized and examined. Emails were found which revealed that the ultimate destination of the shipment was Iran. The total number of sights due to be shipped was 1,000, but the Crown did not proceed with that particular count on the indictment.
7. In support of his submission that the sentence was manifestly excessive, Mr Bleaney makes the following, amongst other, points. That the applicant had a distinguished military career. We can see that from one of the references the court has. On retirement he worked in the security field. He agreed to involvement in the present incident when asked by Mr Bon at a time when he was in the midst of grieving for his son who had died in a car crash in September 2008. He was told that licences were not required by Mr Bon. However, he made some, but not rigorous enquiries of the relevant government department.
8. As to the relevant criteria set out in the case of Knight, it is submitted that the sights were not dangerous in themselves, although it was accepted that they were capable, for example, of being used together with a rifle by a sniper; it was a relatively small consignment; it had to be assumed that they would be used by insurgents; it was unsophisticated offending by a man not thinking straight due to tragic domestic circumstances; the applicant made no attempt to disguise the content of the boxes when they were found, nor his role in their shipping.
9. Sadly there is no transcript available of the judge's sentencing remarks. However, counsel on both sides have provided a short agreed note of the remarks and the following are the main points. The sights were of obvious military significance, the use of such equipment being possible by militia in the Middle East. One such sight had been found in Basra. The defendant had put his financial needs above his responsibility to his former colleagues. He had decided to deal with Mr Bon and was the front man prepared to assist for €12,000. A custodial sentence was inevitable. Deterrence of others was a relevant sentencing consideration. Mitigating factors included the plea of guilty, for which almost one-third credit was due; the death of the applicant's son in 2008; his distinguished military career and the financial difficulties he was undergoing. He had considered the case of Knight [2008] EWCA Crim. 478 being the only case to date on this topic.
10. Counsel tells this court that the judge made some comment to the effect that Mr Faulkner had not chosen his friends wisely and continued to associate with those who he knew to be criminal and this did not assist him. It is submitted that the judge erred because this applicant had no reason to know that Mr Bon was criminally minded until after his son died and Mr Bon got in touch at the outset of the enterprise and thus this could not be an aggravating factor.
11. Turning to the case of Knight, the appellant in that case was an experienced arms dealer who had attempted, but failed, to get a UK licence to supply the Kuwait authorities with 130 sub-machine guns from Iran. Undaunted he carried on. The guns were intercepted by Kuwait's customs officials at the airport. Mr Knight pleaded guilty. His four year sentence was upheld. The Court of Appeal identified a number of factors which would be relevant to the length of sentence. This list did not purport to be exhaustive. They are:

1. The nature of the weapon. Whether of single use (in other words grenades) or multiple uses (guns) and whether the weapon could cause multiple deaths, for example pistols or machine guns.

2. The quantities and values involved.

3. The nature of the intended customer. To supply insurgents would be an aggravating factor, as would supply to a war zone where UN troops were engaged.

4. The level of involvement of the particular defendant.

5. The degree of planning by a defendant, his level of involvement and the degree of knowledge and status.

6. The sophistication of the transaction and whether there were any attempts to evade responsibility and/or create a false impression. There would also generally be matters such as plea and personal mitigation to take into account. The court indicated that it was likely that it would be a rare case where a successful prosecution would not on indictment result in an immediate custodial sentence and ordinarily one of a significant term. A deterrent element such as in that case was appropriate.

12. Whilst it is correct to say that although the sights in themselves were not dangerous, they were clearly intended for equipment that came into the category of weapons that had multiple use and could cause multiple deaths. The quantity was not insignificant given that they could be used with weapons which cause multiple deaths. The defence have conceded that it had to be assumed that they would land up with insurgents, but whoever was to be the ultimate recipient it was the part of the world that they were going to that is of particular concern and relevance.
13. Whilst Mr Bon was the man behind the consignment, this defendant was, as the judge noted, the front man and was well aware of where the contents were destined for. In interview he denied several times that he knew the scopes were destined for Iran, saying that nothing to that effect would be found on his computer. When confronted with the evidence he admitted that he knew the scopes were destined for Iran and understood that he needed a licence for it. This was therefore a blatant and knowing disregard of the law. It is to be noted that the applicant had been visited by Her Majesty's Revenue and Customs in 2006 who had spent a long time explaining what his responsibilities were in relation to export licenses. It is also to be noted from the case summary that the defendant, once the goods were seized, phoned Chadwick Export Services (a company that provides general import and export advice) and asked them if it would be possible for them to say that he was simply the freight forwarder. It was explained to him that this was not possible as he was the exporter with the consequent responsibilities that this entails. This company too had explained the responsibilities to the applicant. From his military background he must have known the importance of adherence to the rules and the rationale for them and must have guessed what they were to be used for.
14. There was significant mitigation in this case and we have taken it all into account. Despite this mitigation, even leaving out of account as an aggravating factor the matter which it is submitted the judge may wrongly have taken into account, the sentence in our judgment cannot be characterised as manifestly excessive. It follows therefore that this application for permission to appeal sentence is refused.