England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		4 November 2014

LADY JUSTICE SHARP:

1. On 24 July 2013 in the Crown Court at Norwich the appellant, Audrius Morkunas, was convicted after a trial of assault occasioning actual bodily harm (count 1) and having an offensive weapon (count 2).
2. On 9 December 2013 he was sentenced to eighteen months' imprisonment for the assault and three months' imprisonment concurrent for having an offensive weapon. There were two co-accused Eridas Dauginitis (ED) and Kestutis Petravicius (KP). ED pleaded guilty to both counts and was sentenced to a total of six months' imprisonment. KP pleaded guilty to count 1 and was sentenced to eight months' imprisonment. A not guilty plea to count 2 was left on the file on the usual terms. The appellant was also sentenced for three offences to which he had earlier pleaded guilty at the same court on 30 January 2013. These were acting as an unlicensed Gangmaster, for which he was sentenced to seven years' imprisonment; possession of an article for use in fraud (a forged Gangmaster's licence) for which he was sentenced to twelve months' imprisonment, concurrent; and money laundering, contrary to Section 327 (1) (c) of the Proceeds of Crime Act 2002 (POCA), for which he was sentenced to seven years' imprisonment, also concurrent. The sentences for the assault and for possessing an offensive weapon were made concurrent to the offences to which the appellant had pleaded guilty, so that the total sentence on the two separate indictments was one of seven years' imprisonment.
3. He appeals against his conviction with the leave of the single judge on one ground in respect of which this court has been invited to admit fresh evidence pursuant to Section 23 of the Criminal Appeal Act 1968. He renews a second ground for which permission was refused. He also appeals against sentence with the leave of the single judge.
4. Conviction:
5. All the material witnesses in relation to this matter are Lithuanian.
6. The facts relating to the assault matter can be stated shortly. On 7 May 2012 Haroldus Mikalauskas (HM) was assaulted by four men with a metal pole at his place of work, a food processing factory, leaving him with red marks to his neck and back. HM said he used to live in a house owned by the appellant and the rent had been collected by KP. He knew the appellant and his voice reasonably well. He had been threatened in the weeks leading up to the attack about an alleged debt. He had arrived at work at about 5.30 am and was approached by KP. Three men were with him; two had metal poles and one a golf club. One was wearing a balaclava and he thought this was the appellant. The appellant was identified as one of those responsible by two police officers who had viewed CCTV footage of the incident and recognised him.
7. The appellant denied he had anything to do with the assaults. He said he was not there when it happened and he had been incorrectly identified by the police officers. In his police interview on 10 May 2012 he said he was with his girlfriend Dalia Melinauskaite (DM) from about 8-9 pm on the evening of 6 May 2012 and he had not left until midnight.
8. On 1 July 2012 a police officer made a pocket-book entry recording that DM was unable to remember if she saw the appellant at the material time. This was served as unused material. The entry said that DM spoke little or no English and the conversation was conducted through "language line". She said that she rented a room from the appellant. He came and went from the house regularly, sometimes staying up to three days. She could not recall when he last visited. She had not been anywhere with him and they were not in a relationship. She could not remember whether she had seen him on 7 May 2012.
9. In his defence case statement served on 1 May 2013 the appellant gave notice of alibi. He said that at the time of the assault he was in bed at 14 Darrell Place, Norfolk, the address of a woman friend, DM. She spent the greater part of that night with him and left in the early hours of the morning to go to work. He said insofar as relevant, he adopted what he had said in interview. He said that DM may be called as a witness.
10. The trial was fixed for 28 May 2013 and then re-fixed for 15 July 2013.
11. On 5 July 2013, as a result of the content of the defence case statement, the police saw DM again and took a witness statement from her. This was done in the presence of a defence representative who took full notes. DM described the role the appellant had played in getting her accommodation and getting her work and the amounts that she had had to pay him. DM said the appellant was not at her house at the time of the assault. She said the appellant, ED and KP came to her house on the evening of 6 May 2012, drank vodka and left in the early hours of the morning after she had gone to bed. The three of them then returned about 6 to 7 am when she was in the kitchen. The appellant's hands were covered in blood. He said he had assaulted "Harry". KP said to the appellant, "I'm staying with you until the end," after which the three men went to a double bedroom and stayed there.
12. She said that later that morning the appellant told her and the other tenants, "Nobody saw us here." The 3 men stayed in the house for another 3 days until they left. She said she realised that the person who had been assaulted was HM who used to live in the same house and owed the appellant money.
13. Either before or after the New Year, 2013, Vilma Jaskiene (VJ), the appellant's partner, had come to see DM at her house with KP, and had offered her money if she would say she was the appellant's girlfriend and was with him at the time of the assault. VJ told DM that the appellant had given this account to his solicitor. DM said she had refused to do this. Shortly afterwards KP had said "Keep quiet, don't say anything to the police or you are not going to live in Norwich." DM said she felt threatened by KP. She said that the appellant had never been in her bed or stayed in her room.
14. At the time DM made this statement, VJ was in custody awaiting trial in relation to charges of perverting the course of justice. We refer to these matters in more detail shortly.
15. On 8 or 9 July 2013 counsel for the appellant, Mr Harrison, who also appears today, advised his solicitors that DM should not be called as a witness for the defence. A notice of additional evidence was prepared by the prosecution in respect of DM's statement dated 10 July 2013. On 11 July 2013, Mr Harrison advised his solicitors to decline to accept service of DM's statement.
16. On 15 July 2013, the first day of the trial, the defence objected to the admission of DM's evidence on the ground that it was served late and it was not possible to investigate its contents. The particular matter highlighted by the defence was this: it was said that DM's account was inconsistent with that of the appellant. He said on the day of the assault DM had left the house at 5am to go to work; she could not therefore have been at the been at the house at time she claimed to have seen him return. The defence said it was too late to investigate this matter: it would be unfair therefore to admit her evidence and the judge was invited to exclude it under section 78 of the Police and Criminal Evidence Act 1984 (PACE). The defence did not ask for an adjournment so it could deal with the content of DM's statement either at this point or subsequently.
17. The judge rejected the application. He said that the defence could and should have contacted the prosecution to ascertain whether they were calling DM; if they had done so they would have been told that the prosecution were calling her, and the defence could then have conducted those investigations. The defence would now have the opportunity to cross-examine DM and were probably in a better position as a result than if she had been called for the defence. The judge indicated that the evidence relating to VJ should not be led however, as it might have to be the subject of a separate hearsay application.
18. On 17 July 2013, before DM gave evidence, the question of what she could say about the VJ incident was returned to.
19. The judge said (accurately) that it was now common ground that the evidence was not hearsay evidence. The prosecution wished to prove what VJ had said, not that what she had said was true. He said he would not permit that aspect of her evidence to be led, but he could not preclude the possibility that the witness would have said this if she was questioned about the event relating to the making of her statement.
20. In the event, DM was vigorously cross-examined by Mr Harrison. It was suggested to her repeatedly that she had lied and her account was challenged by reference to what she had initially told the police in July 2012.
21. At the end of DM's cross-examination the judge permitted DM to be asked questions about VJ's approach to her. He said this: "I have listened to the way in which the defence case has been put and the suggestions put to the witness and indeed the chronology which has been explored at great length, in great detail, by Mr Harrison. It seems to me to be entirely appropriate if this witness is asked about the matters that there appear. It gives full, or could give, an explanation as to why the witness was reluctant to help the police on 1 July and why the position changed when she came to make her statement on 5 July."
22. Mr Harrison now says the judge was wrong to permit DM to give evidence about what happened on 7 May 2013, to "go back" on his initial ruling and to permit DM to give evidence of what VJ had said at a time when it was impossible for the defence to see VJ, or proof her, or arrange for her production to controvert DM's account.
23. We do not consider the judge's decisions at any stage of this process were wrong for the following reasons:
24. DM was seen on 5 July 2013 in the presence of the appellant's representatives as we have already said. We are also told that the appellant's solicitor provided Mr Harrison with the notes of what was said. The defence therefore knew what DM would say if called. It also knew that she would not be a credible alibi witness. The defence took no steps to investigate DM's account. It did not ask the prosecution to do so either, though there was sufficient time for the relevant inquiries to be made before trial. It did not ask for an order that VJ be produced at court.
25. The judge said that counsel's advice (that the defence should decline service of the notice of additional evidence) was difficult to justify, having regard to the overriding objective. We agree. Given the obvious importance of DM's account, it was simply not acceptable for the defence to sit on its hands, purport to refuse service of the notice of additional evidence and then raise an objection on the ground of lateness of trial. In the event, on 15 July the police indicated they were prepared to look into DM's movements on the morning of 6-7 May. They did so, and statements establishing that DM had not been at work on 7 May 2012 were read to the jury without objection. These were steps that the prosecution could have undertaken earlier had the defence raised the matter before the first day of the trial. It is to be noted that the appellant's evidence at trial changed to accommodate this further evidence. He now contended, contrary to his earlier assertions, that DM had left the house early, not to go to work herself, but in order to take others to work.
26. As for VJ, the points now taken are without merit. We have already referred to the Gangmaster and money laundering offences to which the appellant pleaded guilty in January 2013. VJ was a co-accused in respect of counts 1 and 3. In the course of those proceedings, on 22 February 2013, VJ approached two separate witnesses and tried to persuade them to change their evidence. Those witnesses were told by her that they would regret it or have problems if they said anything else. VJ was arrested on 4 March 2013 at Norwich Crown Court where she was attending a hearing in the appellant's case. She was charged with perverting the course of justice by means of making threats to give false evidence and remanded in custody (she pleaded guilty to those offences on 12 August 2013). Her value as a witness to contradict DM's account was in those circumstances clearly very limited. The Crown submits a conscious decision was obviously taken by the appellant's legal team not to ask for VJ's production or to see her. We can understand why that is said. It is reasonable to assume that the appellant knew why his partner was in custody and if he did so, so did his legal team. Indeed, Mr Harrison has confirmed to us today that he did know that VJ had been charged with the offence that we have mentioned. Be that as it may, if it was too late by 17 May to make inquiries this was only because the defence had done nothing to find out what VJ was saying, which it could and should have done if genuinely interested in her account. We repeat the appellant's legal team made no attempt to obtain any evidence from VJ about the allegations. Nor did they apply for her production or an adjournment at any stage.
27. The judge made no binding adjudication on the admissibility of DM's evidence about VJ on 15 July. In our view there was no unfairness to the defence in permitting DM to give evidence on the matter objected to, having regard to the matters put to DM in cross-examination.
28. It is suggested that DM was an unsatisfactory witness in a number of ways. The matters advanced in this respect are not pertinent to the merits of the appeal. These were matters for the jury to assess.
29. We have been invited to admit the evidence of VJ as fresh evidence for the purposes of this appeal albeit that Mr Harrison also submits that if he is right about his main point this would not advance the appellant's arguments. We decline to accept this evidence. It consists of one sentence only in a witness statement from VJ saying she did not communicate with DM in the way alleged. In our view it does not meet the criteria laid down by Section 23. The evidence is not fresh evidence. It was available at the time of the trial; the defence chose not to get it. We are not satisfied therefore that there was a reasonable explanation for the failure to produce it at trial. In the circumstances of VJ's conviction, t must also be highly doubtful whether it is capable of belief.
30. Finally we think it is regrettable that the single judge who dealt with the application for permission to appeal was not told why VJ was in custody at the time of the trial, either in the grounds of appeal or the accompanying advice from counsel, as this information was an important part of its overall picture in relation to the issues now raised on the conviction appeal.
31. We turn to the one ground in respect of which the appellant renews his application for permission to appeal against conviction. This relates to the issue of identification.
32. HM did not see the man he thought was the appellant without a balaclava. However CCTV footage caught the group who attacked him before the person wearing the balaclava put it on. Thus that person's face could be seen on the footage, albeit briefly. The prosecution wanted to call two police officers who had viewed the footage and identified the appellant as the person concerned: DC Baron, who interviewed the appellant after the attack, and DC Starland, the investigating officer for the Gangmaster offences. The defence objected, and the judge held a voir dire to determine admissibility.
33. DC Baron's interview with the appellant on 10 May 2012 lasted about an hour. During the course of the interview, he had attempted but failed to play the footage. DC Baron then returned to his police station, and managed to get the disc to play and he watched it. He made no notes however whilst doing so. On 23 July 2013, he made a statement in which he said he viewed the disc three times and recognised the appellant who he described as distinctive. During the voir dire DC Baron said he did not regard himself as conducting an identification procedure, but was concerned to see whether the disc was damaged.
34. DC Starland said he had viewed the footage on his own on 3 August 2013, after a colleague asked him to do so. By the time he saw the footage he had interviewed the appellant on two previous occasions (in relation to the Gangmaster offences) and had met him on a third. He said he took notes while watching the footage, but had mislaid them by the time of the trial. He said however that he had used those notes to compile his witness statement on the same day as he viewed the footage, indeed very shortly after he watched it.
35. The judge decided there had been an arguable breach of Code D of PACE in each case, but these fell far short of what was required to engage Section 78 of PACE, and he declined to exercise his discretion to exclude their evidence. Mr Harrison submits however, the judge was wrong and the evidence should have been excluded. He says DC Baron's evidence was accidental recognition evidence subject to no control and the court and the appellant were deprived of the contemporaneous notes of DC Starland that should have been available.
36. In our view, however the judge's decision was well within the ambit of the proper exercise of his discretion, and we do not think the contrary is arguable. We note that the judge's summing-up on this point was full and meticulous. The code breaches were identified and the jury were given proper directions on their approach to identification evidence generally, and on the particular facts of this case.
37. Sentence:
38. The Gangmasters (Licensing) Act 2004 ("the 2004 Act") was introduced in the aftermath of the Morecambe Bay tragedy to protect vulnerable workers from exploitation in agriculture, horticulture, shell-fish gathering and food processing and packaging. It introduced a licensing regime for Gangmasters which is implemented by the Gangmasters Licensing Authority ("the GLA").
39. Section 4 of the 2004 Act provides as follows:

(1) This section defines what is meant in this Act by a person acting as a gangmaster.

(2) A person ('A') acts as a gangmaster if he supplies a worker to do work to which this Act applies for another person ('B').

(3) For the purposes of subsection (2) it does not matter —

(a) whether the worker works under a contract with A or is supplied to him by another person,

(b) whether the worker is supplied directly under arrangements between A and B or indirectly under arrangements involving one or more intermediaries,

(c) whether A supplies the worker himself or procures that the worker is supplied.

(d) whether the work is done under the control of A, B or an intermediary,

(e) whether the work done for B is for the purposes of a business carried on by him or in connection with services provided by him to another person.

(4) A person ('A') acts as a gangmaster if he uses a worker to do work to which this Act applies in connection with services provided by him to another person.

(5) A person ('A') acts as a gangmaster if he uses a worker to do any of the following work to which this Act applies for the purposes of a business carried on by him —

(a) harvesting or otherwise gathering agricultural produce following —

(i) a sale, assignment or lease of produce to A, or

(b) (ii) the making of any other agreement with A,

(c) where the sale, assignment, lease or other agreement was entered into for the purpose of enabling the harvesting or gathering to take place;

(d) (b) gathering shellfish;

(e) (c) processing or packaging agricultural produce harvested or gathered as mentioned in paragraph (a).

(f) In this subsection 'agricultural produce' means any produce derived from agriculture.

(6) For the purposes of subsection (4) or (5) A shall be treated as using a worker to do work to which this Act applies if he makes arrangements under which the worker does the work —

(a) whether the worker works for A (or for another) or on his own account, and.

(b) whether or not he works under a contract (with A or another).

(7) Regulations under section 3(5)(b) may provide for the application of subsections (5) and (6) above in relation to work that is work to which this Act applies by virtue of the regulations."

40. Anyone who is a Gangmaster (defined in Section 4 of the 2004 Act) needs a licence if they supply labour for licensed sectors whose work provides services in licensed sectors or use workers to gather shellfish. All workers, temporary or permanent, are covered under the licensing scheme.
41. Under Section 12 of the 2004 Act, it is a criminal offence to operate without a licence or to use an unlicensed provider.
42. The GLA's objectives include targeting, dismantling and disrupting serious and organised crime and the early identification of human trafficking, tackling tax evasion, health and safety negligence, fraud, breaches of employment and other laws, regulations and identifying and tackling forced or bonded labour by licensed and unlicensed Gangmasters.
43. Those applying for a licence are assessed against the licensing standards affecting work where there is poor treatment and exploitation.
44. The most recent standards were issued in May 2012. Part 2 of the GLA Standards sets out the detail of the GLA licensing standards and explains what is expected to demonstrate compliance.
45. It is necessary to meet those standards to obtain and retain an operator's licence. References to a "licence holder" include applicants for a Gangmaster's licence.
46. There are eight such standards. They cover a "fit and proper" test; pay and tax matters; prevention of enforced labour; physical and mental mistreatment of workers; quality of accommodation (if it is a licensable house or one in multiple occupation); working conditions; health and safety; recruiting workers and contractual arrangements.
47. It is to be noted that licensing standard 4.2 says: "A licence holder who provides, or effectively provides, accommodation must ensure the property is properly licensed or registered," and that the licence holder must not charge a fee to a worker for any work-finding services.
48. The offence of operating as a Gangmaster without a licence contrary to Section 12 of the 2004 Act can be tried summarily in the Magistrates' Court (where the maximum sentence is 12 months' imprisonment) or on indictment, where the maximum sentence is one of ten years' imprisonment. In addition, offences under Section 12 are lifestyle offences to which confiscation provisions of the Proceeds of Crime Act (POCA) Section 75 apply.
49. In Attorney General's Reference Nos 37, 38 and 65 of 2010 [2010] EWCA Crim 2080, the court gave guidance on factors likely to be relevant to sentences for offences of people trafficking, contrary to Section 4 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 Offences under section 4 of that Act attract a maximum sentence of 14 years' imprisonment.
50. The court said at paragraph 17, that factors likely to be relevant to sentence in cases of people trafficking include:

(1) The nature and degree of deception and coercion exercised upon the incoming worker;

(2) The nature and degree of exploitation exercised on the worker on arrival in the work place;

(3) The level and method of the control exercised;

(4) The level of vulnerability of the incoming worker;

(5) The degree of harm suffered by the worker;

(6) The level of organisation and planning behind the scheme;

(7) The number of those exploited; and

(8) Previous convictions for similar offences.

51. The court found the sentences passed (of 3 years) to be unduly lenient. It went on to say that an element of deterrence was appropriate when assessing sentence and the starting point should have been one of six years' imprisonment.
52. The analogy must not be taken too far because offences under the two pieces of legislation we are considering can be committed in a wide variety of circumstances. Nonetheless, the criminality which both enactments are aimed at preventing has or can have certain common features, where they involve the exploitation and control of groups of workers who are vulnerable because of their unfamiliarity with the language, laws and ways of life of the host state. It is to be noted that section 4(4)(c) of the Asylum & Immigration Act 2004 provides that exploitation for the purposes of people trafficking includes being subjected to force, threat or deception designed to induce a provision of services or the provision of another of these benefits, and in our view similar considerations are relevant here.
53. In the result, we think that the factors guiding sentencers dealing with people trafficking, suitably adapted, can provide relevant guidance for sentencers under the 2004 Act. With those matters in mind, in our view, the following factors are likely to be relevant to culpability and harm, and therefore to sentence:

(1) The scale of the Gangmaster's activities in the supply of labour;

(2) The role played by the Gangmaster in the operation as a whole, whether leading or significant, for example;

(3) The level of organisation and planning behind these activities;

(4) The number of workers involved;

(5) The nature and scale of any associated methods of organisation and control, including the supply of accommodation and transport;

(6) The amount of money made by these combined activities;

(7) The use of false documents and other breaches of the law regulating these activities;

(8) The level of exploitation evinced by these activities;

(9) The level of vulnerability of the workers because of age or background, for example;

(10) The use of violence to enforce debts and other requirements;

(11) The use of coercion and threats, short of violence;

(12) The degree of harm suffered by the workers; and

(13) Any previous convictions for similar offences.

54. We turn now to the facts of this case.
55. The appellant is now 40 years old. He is a Lithuanian national of effective good character. He was remanded in custody in November 2012 and pleaded guilty to the Gangmaster offences on 30 January 2013 after service of the papers. After a change of representation, in the course of March 2013 he applied to change his plea. On 17 May 2013 he withdrew this application. He then filed an agreed basis of plea which was not acceptable to the Crown in which he admitted providing a commercial service to Lithuanian immigrants where he would help them find accommodation and work and would assist them in opening a bank account and would render other associated services. He purported to plead on a full facts basis confining this admission to the facts outlined in nine statements the prosecution had served from workers. Thus, the appellant admitted only that he had charged those nine workers fees, amounting to some £3,000 in total. The prosecution declined to accept the basis of plea. Its case was that the appellant had received large sums of money and fees and his basis of plea significantly understated the nature of his criminal conduct.
56. Directions were made for a further hearing and for the prosecution to serve further particulars of its case. The further particulars of the prosecution case were served in July 2013 and said: "It is not accepted that the defendant's receipts from criminal conduct are limited to £3,330. The Crown relies upon moneys passing through bank accounts of the defendant, VJ, Jolante Zarambiene and Maria Morkuniene as evidence of the appellant's benefit from criminal conduct." (JZ is the sister of the appellant; MM is his mother; and VJ is his partner, as we have already said).
57. The further particulars went on to say that the Crown intended to call as witnesses DC Starland (the officer in the case), Mr Paul Cunningham (a GLA investigator, employed as Head of Operations (East) for the GLA) and a financial investigation officer. It went on to say that all other statements were to be read unless the defence notified the Crown that its witnesses were required to attend the hearing and it proposed to rely further on the evidence of DM given during the trial, including statements from HM Revenue & Customs seeking the tax and national insurance records of the appellant.
58. The adjourned hearing began on the morning of 12 September 2013. The appellant had not asked for any witnesses to attend for cross-examination and did not call any witnesses himself. The judge refused to accept information given to the court on instructions by Mr Harrison about the appellant's financial position, but then granted an adjournment to enable the defence to obtain documents relating to the appellant's business and income. The defence said these documents were needed so that the appellant could rebut allegations that he had used his relatives' bank accounts to process money obtained by unlawful conduct and to show that the money in his bank accounts was lawfully acquired. The judge further directed that the case be concluded by mid-November.
59. However, due to a misunderstanding by Mr Harrison, his clerk arranged for the matter to be listed for a five-day hearing in February 2014. On 19 November 2013 the judge directed that the case should come on sooner. To avoid further delay he also directed that the appellant would be sentenced on the basis of the moneys the Crown could prove had passed through accounts controlled by him alone. The judge said that the use by the appellant of the bank accounts of others could be dealt with in the POCA application. A revised defence case statement was then served accepting receipt of about £4,500 in fees. On 21 November 2013, the prosecution's schedule of evidence was re-served. It set out the extent of the appellant's financial reward on the evidence. The Crown's case at that stage was that the following witnesses would be available for cross-examination: DC Starland, Mr Cunningham and Miss Bernal (an estate agent with whom the appellant had dealings in relation to a number of properties on which the prosecution relied because of their connection with the migrant workers who rented rooms in them).
60. The final Newton hearing took place on 2 December 2013. The prosecution's case, as presented, was that the appellant acted as an unlicensed Gangmaster over the whole of the indictment period of l1 January 2009 to 10 December 2012; and that his financial reward, calculated on the basis of moneys going through his accounts, was over £100,000 during that period. We are told by Mr Morgan who appeared for the prosecution below, and we accept that the prosecution witnesses we have referred to were available for cross-examination. The defence relied on a bundle of documents lodged on the morning of the hearing and the appellant gave evidence together with a number of other witnesses called on his behalf. We have examined the material available to the judge and identified in the prosecution schedules.
61. The case, as the judge found, concerned the economic exploitation of migrant Eastern European workers in the East of England. There was evidence that the appellant played a leading organisational role in the exploitation. The exploitation was characterised by the following features amongst others: payment of a fee to travel to the UK in expectation of work; travel documents, passports etc retained by the appellant; banking documents and cards etc retained by the appellant allowing him to control the workers' bank accounts; the provision of accommodation and the charging of rent and workers being charged for transport. There was evidence the appellant systematically exploited a significant number of such workers over a period more than 3 years, that he reinforced economic exploitation by threat and in some cases he actually used violence. He also recruited others to assist him in threatening and/or using violence and in running his organisation.
62. In our judgment the judge was entitled to conclude on the evidence before him that this was economic exploitation of the vulnerable on a significant scale, and to reject the contention that this case was really concerned with a regulatory or technical breach as the appellant asserted in his evidence.
63. The judge found the appellant had gained in the region of £100,000 from his Gangmaster activities. We reject the contention that the prosecution evidence established that the appellant had gained no more than £3,000 and that the judge's findings were arbitrary, irrational and unsupported by the evidence.
64. Significant sums of money went through the appellant's accounts which are simply not accounted for by his documents. The appellant had two companies: Vilte Ltd dissolved on 28 February 2013, and Vilte Garage dissolved on 24 February 2012. The case for the appellant apparently was and is that the moneys that went through his account were legitimate proceeds of his garage business. However he produced no accounts to the judge which supported this case, and we do not accept Mr Harrison's submission made today that he could not do so, only because he had been in custody for a considerable period. As Mr Morgan says it has been a year since the hearing before the judge. If there were financial and other documents emanating from the garage business to support this contention which the judge was not disposed to accept then the appellant could have produced them by today. He has not done so.
65. Instead, we have before us a statement from a gentleman who says he is the appellant's accountant. We are invited to admit it as fresh evidence because it is said to go to an issue the judge referred to, namely whether the appellant had an accountant or not. Mr Harrison submits it is to be inferred from comments made by the judge that the judge did not accept that there was such a person because in his ruling he said the appellant could not remember his accountant's name. We decline to admit this further evidence. We do not accept that there is a reasonable explanation for the failure to produce it. But in any event, it adds nothing of relevance. It says merely that this man acted for the appellant and the two companies in relation to their company and tax affairs in 2011. No accounts were provided for those years to the judge, and none have been provided to us.
66. The judge had evidence from migrant workers of the amount the appellant would charge them for the services, the number of houses rented and sublet by the appellant, the amounts he charged for such accommodation, and of the cramped and unsuitable conditions in which the workers lived. He had evidence of the number of migrant workers (209) that the appellant introduced to Lloyds Bank during the material time. He had evidence of identity documents such as passports, banking cards, debit cards and PIN numbers found in the appellant's possession from which, the judge said, 250 separate identities could be established. The judge assessed that evidence carefully. In our judgment he was entitled to reject the appellant's explanation for holding these documents as spurious and to draw the conclusions he did as to the nature and extent of the exploitation involved. In the circumstances we do not accept the appellant's principal contention which is that there was insufficient evidence or no evidence before the judge to support the adverse findings being made against him either as to the total sums received as a result of illegal Gangmaster activities or as to the nature of those activities. There was ample evidence of those matters before the judge who had also dealt with the assault trial, and heard evidence from DM and HM of appellant's methods of enforcing debts and who had also dealt with the relevant and connected guilty pleas of KP, ED and VJ.
67. Mr Harrison submits that the judge did not give sufficient weight to the important mitigating fact as it is said to be, that the appellant was misled at an early stage by Mr Cunningham as to whether he required the Gangmaster's licence at all. In his witness statement Mr Cunningham described a number of meetings with the appellant in 2009 and 2010. We do not think there is any substance in this point. The appellant had in his possession a forged GLA licence - a matter which is obviously at odds with his contention that he believed he did not need a licence. There is no evidence either that Mr Cunningham was told of the true nature of the appellant's activities, in particular in relation to the supply of workers. In any event, it was and would have been obvious to the appellant, who did know what he was doing, that he needed a licence. We would add that the GLA provides clear and helpful guidance on all aspects of the process on its website.
68. The judge had before him a great deal of evidence, including from the appellant. He dealt with the matter carefully and thoroughly and gave proper reasons for his conclusions which are challenged in this appeal. In our judgment he was entitled to reject the appellant's evidence on the key issues raised by the case against him as being "without merit and untrue".
69. We turn finally to length of sentence.
70. The judge said the assault was an incident of the appellant's Gangmaster activities. HM had been beaten in public by the appellant and his "henchmen", as the judge described them, in a planned and executed punishment attack in public using a weapon. The judge said this was organised thuggery and was conduct to which the sentencing guidelines did not apply.
71. As for the Gangmaster offences, the judge said it was a commercially exploitative operation involving migrant workers which went on for some years. The judge thought assistance was to be gained from the Attorney General's Reference, to which we have referred. He identified the following aggravating features: the market is highly regulated; the workers were at a moderate to high level of vulnerability; there was a significant degree of planning and organisation; there was a high degree of exploitation with a significant number of people; and the judge thought an element of deterrent was called for as there was widespread concern about this type of activity.
72. Using the Gangmaster maximum (of 10 years), the judge took a starting point of 8 years which he discounted by one year (i.e. by 12.5 per cent) for the appellant's guilty plea; and he took account of totality by making the remaining sentences concurrent.
73. The Gangmaster offence involved the well-organised exploitation of a large number of vulnerable workers, as the judge found; with controlled accommodation, transport, bank accounts and personal documentation. The offence was committed against the background of threats, violence and intimidation of witnesses. The appellant was in possession of a forged Gangmaster licence. The rewards for the appellant were large. The appellant displayed no remorse or any feeling for the victims. There was no mitigation apart from the appellant's guilty plea, for which we think he was given appropriate credit in the light of the judge's findings that his evidence was without merit and untrue. The judge was well placed to assess the appellant given the history of the proceedings and their particularly prolonged nature.
74. The judge could have adopted a lower starting point for the Gangmaster offences and passed a consecutive sentence for the assault offences, but he avoided double-counting by making all sentences concurrent and he was entitled to pass a longer sentence for the Gangmaster offences in consequence.
75. The question we have to address is whether the overall sentence of 7 years' imprisonment for these various offences was manifestly excessive or wrong in principle. We are not persuaded that it was. In the result, the appeals against conviction and sentence are dismissed. The renewed application for permission to appeal against conviction is refused.