Jersey Unreported Judgments

Inferior Number Sentencing - fraudulent evasion of duty on goods - drugs - importation

[2022]JRC294

Royal Court

(Samedi)

16 December 2022

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Crill and Le Cornu

The Attorney General

-v-

Aaran Howard Eastwood aka Higgins

Antonio Paulino Ermelino De Andrade

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:

Aaran Howard Eastwood aka Higgins

1 count of:	Being knowingly concerned in the fraudulent evasion of the duty chargeable imported on goods, contrary to Article 61(2)(a) of the Customs and Excise (Jersey) Law 1999 (Count 1)
1 count of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to Article 61(2)(a) of the Customs and Excise (Jersey) Law 1999 (Count 2).

Age:  32.

Plea: Guilty. 

Details of Offence:

Over a period of a year Eastwood evaded thousands of pounds worth of duty on tobacco and cigarettes by buying duty free cigarettes and hand rolling tobacco and then selling them on to Jersey individuals including selling a large proportion to De Andrade.

 

Over the year Eastwood purchased 37kg of hand rolling tobacco and 11,200 cigarettes from World Duty Free which he imported into the island.  The total duty evaded plus GST amounted to £24,653.85.

 

Through telecommunication messages it was determined that Eastwood offered De Andrade 31.5kg of hand rolling tobacco to buy and 1000 cigarettes.  De Andrade agreed to several purchases totalling 28.25kg of hand rolling tobacco.

 

When Eastwood was arrested a blister packet with five 10mg tablets of diazepam was found in his wallet.

Details of Mitigation:

Both De Andrade and Eastwood pleaded guilty on first appearance and were cooperative in interviews.

 

Eastwood is not of good character, had drug connections and Count 1 was aggravated due to the prolonged and repeated nature of his offending.

Previous convictions:

Eastwood has convictions for 14 offences comprising of four theft and kindred offences, namely three for larceny (2005, 2006, 2007) and one theft (2012).  He was last before the Courts in March 2015 where he was sentenced to 5½ years' imprisonment for supply of a Class A drug, possession with intent to supply and three possession offences.

Conclusions:

Count 1:	180 hours' Community Service Order (equivalent to 12 months' imprisonment)
Count 2:	40 hours' Community Service Order (equivalent to one month's imprisonment), concurrent

Total:  180 hours' Community Service Order (equivalent to 12 months' imprisonment).

Declaration of benefit and confiscation order sought in the sum of £95,230.

Forfeiture and destruction of the tobacco and cigarettes seized sought.

Sentence and Observations of Court:

Count 1:	15 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent.

Total:  15 months' imprisonment.

Forfeiture and destruction of the tobacco and cigarettes seized ordered.

Declaration of benefit made in the sum of £95,230.

Confiscation matters stayed for 4 weeks.

Antonio Paulino Ermelino De Andrade

1 count of:

Knowingly acquiring possession of goods chargeable with a duty which has not been paid, contrary to Article 61(1)(a)(ii) of the Customs and Excise (Jersey) Law 1999. (Count 3).

Age:  60.

Plea: Guilty. 

Details of Offence:

See Eastwood above..

Details of Mitigation:

Both De Andrade and Eastwood pleaded guilty on first appearance and were cooperative in interviews.

 

De Andrade was treated as being of good character.

Previous Convictions:

De Andrade has one previous conviction for two irrelevant motoring matters.

Conclusions:

Count 3:

£2,000 fine

Sentence and Observations of Court:

Count 3:

£6,000 fine to be paid at a rate of £300 per month, with 6 months' imprisonment in default.

M. R. Maletroit Esq, Crown Advocate.

Advocate L. A. Ingram for Defendant Eastwood.

Advocate R. Tremoceiro for Defendant De Andrade

JUDGMENT

THE DEPUTY BAILIFF:

1.        Aaron Eastwood you are 32 years old and no stranger to the courts, having amongst other appearances received a sentence of 5½ years' imprisonment for offences, including possession of heroin with intent to supply, in March 2015.  At the same time you were also sentenced to 4½ years' imprisonment for supplying heroin. 

2.        Antonio De Andrade you are 60 years old and in effect a man of previous good character. 

3.        You fall to be sentenced for your roles in respect of a substantial fraudulent evasion of excise duty in which Eastwood, your role was by far the more significant.  You both pleaded guilty to the respective counts you face on the Indictment.

4.        Mr Eastwood, between October 2020 and October 2021 when you were arrested, you deliberately, frequently and covertly imported very significant amounts of tobacco and cigarettes into the island so as to evade the duty on those goods.  You were in effect a professional importer of such goods running, in our view, an unlawful business.  You would buy duty free hand rolling tobacco and cigarettes from airports such as Heathrow and Gatwick and arrive at the airport in Jersey and thereafter distribute the duty free items you purchased, which were far in excess of the personal limits of 200 cigarettes and/or 250 grams of hand rolling tobacco, and you did so at a profit.

5.        We do not need to repeat the Crown's summary of the evidence, which was read out to us this morning, but some of the amounts which you imported were very significant.  On one occasion for example, you purchased to import into Jersey 4,000 cigarettes from Heathrow Terminal 5 at the cost of £812.  On another occasion you purchased 8kg of tobacco from Heathrow Airport and 1,600 cigarettes at the cost of £1, 799 and the total value of the importations into Jersey alone in terms of the duty that you evaded comes to £24,600 which represents 37kg of tobacco and 11,200 cigarettes.

6.        Your telephone records show that you were also purchasing duty free cigarettes to be sold again, duty free cigarettes that were far in excess of the permitted amount, in London to a contact you had there.  After you were arrested and your home was searched Customs and Immigration Officers found 3kg of hand rolling tobacco and 1,000 cigarettes at your home, again imported in the same way.

7.        Your telephone records disclose that Mr De Andrade, your co accused, had agreed to purchase 28.25kg of hand rolling tobacco from you at a total price of £8,695 between July and September of last year.

8.        You offered to supply Mr De Andrade slightly more totalling 31.5kg.  The profits that you were making Mr Eastwood, from this unlawful business were significant.  For example only, we see that 3kgs of hand rolling tobacco you bought for £524 you sold to Mr De Andrade for £900 and on 17^th September 2021 you purchased 6.75kg of tobacco for £1,179 which you then sold on to Mr De Andrade as part of a transaction for over £2,000.

9.        Your conduct in the period of shortly prior to your arrest is demonstrative, in our view, of the profits that you were making.  On 5^th October 2021you flew from Jersey to Heathrow purchasing 4,000 cigarettes from Terminal 5, then 1,200 cigarettes from Terminal 5 so a total there of 5,200 cigarettes.  Some of those appear to have been sold in the UK.  Then you travelled to Gatwick, purchased 3,600 cigarettes and then again at Gatwick on the same day half an hour later another 2,400, so at Gatwick that morning, having purchased 5,200 cigarettes in Heathrow you purchased 6,000 at Gatwick.  Those 6,000 cigarettes were confiscated from you, the ones you bought in Gatwick, by the UK border force half an hour after your last purchase but you were not remotely discouraged by this as later on that day you took a flight from Heathrow to Jersey and there you breached airport security, made your way from arrivals to the shop in the Departures Hall and purchased another 1,000 cigarettes which demonstrates both your confidence and, in our view, your arrogance, and the profits that you were making from this unlawful business.

10.      When you were arrested at the airport on 10^th October 2021 there were 3,000 cigarettes concealed in the zip lining of a suitcase showing that you had made those purchases in Jersey, taken the cigarettes to Guernsey and then reimported them, each receipt bearing different passport numbers.  When you were arrested you lied to the Customs Officers and said you were carrying cigarettes for other people you were travelling with.  At the same time 5 diazepam tablets were discovered (Count 2).  In your first police interview on 31^st October 2021you repeated your untruth that you had been carrying the cigarettes that you had on you when you were arrested for people you were travelling with.  You said that you were happy to take the chance of buying more than your duty free allowance and you bought tobacco for yourself and friends.  You were asked if you were aware of the need to declare anything above your customs allowance and you said "it hasn't been drilled into me" which the Crown rejected quite rightly this morning as not being true.  You told the police in interview you thought that what you were doing was not very serious and you might be fined if you were caught.  You accepted the tobacco products found in your home were also bought illegally in the sense that they were in excess of the duty free amount.  The diazepam you had obtained from a friend in Guernsey and it was not prescribed to you.

11.      In your second interview you told the officers you did not believe it was your responsibility to tell customs if you had additional duty free and the customs ought to stop you and find it.  We find this also to be a reflection of your arrogance and dismissive approach to your offending.  You minimised the extent of your involvement with the offending and said that you travelled between Jersey and the UK four or five times spending approximately £3,000 to £5,000 and purchasing these items over a 1 to 2 year period.  Of course you had spent much more than that.  You said that you had sold tobacco in Jersey to work mates making a small amount of money.  You said you would buy 50 grams of hand rolling tobacco for £14, that you would then sell on for £16, and usually they retail for £40.  This of course understates the profits you were making as demonstrated by what you sold the tobacco for to Mr De Andrade. 

12.      You were asked about various cash deposits received into your accounts and you claimed that you had sold to Mr De Andrade £3,000 to £4,000 worth of tobacco.  The actual sum involved was larger than that.  You denied supplying him the 28kgs of tobacco which you did in fact supply him.  When you were finally interviewed on March 2020 (the third occasion that the officers spoke to you) and the spreadsheet of the telecommunications was put to you and your travel history was put to you, you still in our view minimised your guilt.  In fact the evidence showed you had purchased very significant quantities of hand rolling tobacco and cigarettes since 2020.  Not all of this was imported into Jersey but it shows the scale of the operation in which you were involved; although you are being sentenced today only for the counts on the Indictment to which you have pleaded guilty.

13.      As I have said customs calculations indicated you had offered Mr De Andrade 28.35kgs of hand rolling tobacco.  You said in that interview that only 5 kilograms had been supplied to him which you had bought for a £1,000 and resold to him for £1,500.  You denied bringing duty free cigarettes into Jersey, although you plainly had and by your plea you accept that you had done so. 

14.      Mr De Andrade, when you were interviewed in March 2021 you said that friends would bring tobacco back to you from the UK, that you had known Mr Eastwood for some 14 years and you bought tobacco from him for cash, but you knew it was illegal to buy and resell tobacco and cigarettes.  You subsequently accepted that you thought the tobacco was duty free and you admitted reselling tobacco to friends - but not you say at a profit.  We have information today in front of us in respect of your earnings and your spare income and your counsel said on your behalf that the most that you could afford towards any financial penalty in view of your means is some £325 a month.  The reality is that between July and September 2021 you were spending more than £2,000 a month buying tobacco from Mr Eastwood, which whether or not you were selling it as a profit is indicative of the extent to which you were supplying it to people you knew. 

15.      You both pleaded guilty at the first opportunity and will receive full credit for those pleas.  These were on any view serious offences.  Mr Eastwood you have pleaded guilty to being knowingly concerned in the fraudulent evasion of the duty chargeable on goods.  Mr De Andrade you have pleaded guilty to be knowingly acquiring possession of goods chargeable with a duty which has not been paid.  These are offences which are committed against every taxpayer.  In jurisdictions such as Jersey, import duties are an important source of public revenue and every taxpayer is a victim of a fraud on the treasury carried out in this way. 

16.      There are strong policy reasons for offences such as this to be met with immediate custody if that offending is serious and certainly in our view this was serious.  Secondly there are good reasons for the duty, high as it is, to be imposed as it is on tobacco and cigarettes.  Cigarettes kill, and both cigarettes and tobacco present harms to public health.  The costs to the health service of those addicted to cigarettes and tobacco are substantial.  Peoples lives are affected.  A cheap illicit black market in tobacco and cigarettes undermines public health.  In the same way that Jersey has developed its own sentencing regime to ensure the penalties for importing controlled drugs whether Class A or Class B are robust, it should in our judgment adopt a similar policy in respect of those who fraudulently evade duty by importing, in your case Eastwood, and distributing, in your case De Andrade, tobacco and cigarettes.

17.      It was suggested that we should have some regard to the relevant sentencing guidelines in England and Wales for the equivalent offence in that jurisdiction.  The Royal Court has repeatedly held that such guidelines are never binding although they may be of assistance in particular cases.  The Royal Court has held that they are of no assistance in relation to certain offences, notwithstanding the similarity between the terms of the corresponding statutes in each jurisdiction.  English guidelines are of no assistance to us in sentencing you today for the reasons of policy I have described, for the reason set out in the Royal Court in AG v Sutton and McDermott [2015] JRC 144, and for the need to deter others from offending in this way, otherwise there is a risk that Jersey will become a magnet for those wishing to unlawfully import cigarettes and tobacco at profit undermining, as we have said, both the exchequer and public health. 

18.      We know that in the only similar case, the 2015 case of AG v Sutton and McDermott, in the case of a smaller evasion of duty, the Court imposed a sentence equivalent to 12 months' imprisonment.  In that case the total duty evaded by the principal defendant was under £10,000.  In that case the Court also held the custody threshold was passed for both defendants and in that case the English guidelines were not adopted save to the extent that they assist in identifying aggravating and mitigating features and in that regard we note and find that this was, in our view so far as you are concerned Mr Eastwood, a well-planned and sophisticated offence and amounted to fraudulent activity conducted over a substantial period of time. 

19.      The Court in that case was influenced by the fact that a substantial confiscation order had been made and we have made a significant confiscation order today which we will deal with briefly.  We have already assessed the value of Mr Eastwood's benefit to be in the sum of £95,230 and we certify in accordance with Article 4(2) of the Proceeds of Crime (Jersey) Law 1999 ("the Law") that the amount that might be realised is more than the value of that benefit and we determine that the amount to be recovered from Mr Eastwood is in that sum of £95,230.  We order, pursuant to Article 17(1) of the Law, that the Viscount should be permitted to realise any of the assets in his possession as he considers necessary to satisfy this order but we stay the effect of that at the request of defence council for the period of four weeks to enable Mr Eastwood to satisfy that sum by other means if he is able to do so.  We order the recoverable amount, after the deduction of the Viscount's fees expenses, costs and disbursements be paid into the criminal offences confiscation fund and order under Article 16(6)(c) of the Law that on satisfaction of the confiscation order the saisie judiciaire shall be discharged.  We do not vary the terms of the saisie and may do so in due course on subsequent written application on notice to the Crown if that is appropriate. 

20.      It should be plain from what we have said that we are satisfied that these offences in respect of Counts 1 and 3 on the Indictment are serious.  In respect of Count 1 on the Indictment giving credit, as we have said for your plea of guilty Mr Eastwood, and all that has been said on your behalf and all the mitigation appearing upon the papers the least sentence we can impose and do impose is 15 months imprisonment.  On Count 2 the sentence is 1 month imprisonment to run concurrently.

21.      In relation to you Mr De Andrade, the Court would have been entitled to hold that the custody threshold was reached in this case but we have in the circumstances decided to impose a financial penalty on you.  You will pay a fine of £6,000 at the rate of £300 with the first payment on or before the 31^st December 2022.  The penalty for default of any one single instalment is a sentence of imprisonment of up to 6 months.

22.      We order the forfeiture and destruction of the tobacco and cigarettes seized.

23.      We order the disclosure of Dr Englebrecht's report to HMP La Moye as requested by the reports in front of us. 

Authorities

AG v Sutton and McDermott [2015] JRC 144. 

Proceeds of Crime (Jersey) Law 1999. 

AG v E Denis and Company [2000] JRC 127

AG v Whelan [2011] JRC 159A

AG v Gallagher [2011] JRC 129

AG v Manners [2009] JRC 212

AG v Ferguson et al [2022] JRC 070

AG v Gittens [2018] JRC 201

AG v Munks [2009] JRC 129

AG v Snell [2005] JRC 079

English Sentencing Guidelines