R v Le and Stark
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 05 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J1005-11 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 98/0630/W2 |
| Date | 05 October 1998 |
[1998] EWCA Crim J1005-11
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill
Mr Justice Tucker
and
Mr Justice Richards
No. 98/0630/W2
98/0318/Y4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR O SAXBY appeared on behalf of THE APPELLANT LE
MR M PEGLOW appeared on behalf of THE APPELLANT STARK
MR A J KEITH and MR J HALL appeared on behalf of THE CROWN
Monday 5 October 1998
By section 25(1)(a) of the Immigration Act 1971 it is provided:
"Any person knowingly concerned in making or carrying out arrangements for securing or facilitating -
(a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant;
….
shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than seven years, or with both."
There are now before the court two appeals against sentences imposed for convictions under this section. The first appellant, Van Binh Le, was convicted on 24 November 1997 in the Crown Court at Canterbury of a single count of facilitating illegal entry and on 20 January was sentenced to 42 months' imprisonment. He is a North Vietnamese refugee who came to this country in 1990. On the afternoon of 24 November 1997 he and his passenger, a 25-year-old fellow Vietnamese, arrived in England from Ostend. The appellant presented the Customs Officer with two Home Office travel documents, one in his name and the other in another name. The officer appreciated that the passenger looked considerably younger than the details in the document that had been presented in respect of him suggested, and after asking questions detained both men. They were interviewed through an interpreter. The appellant said that he had met his passenger, whom he did not know, whilst on holiday in Belgium. The passenger had asked him for a lift back to England, to which the appellant agreed. The passenger admitted that his real name was different from that on the document and said that the appellant had filled in his original landing card for him.
The Assistant Recorder in his sentencing remarks said that the court was left to speculate as to the appellant's motives, whether he acted for financial gain or whether he did it out of fellow feeling for someone of similar background and experience to himself, but took the view that it did not matter very much since the case required a deterrent sentence on either basis. The Assistant Recorder also said that he did not know whether the appellant was being used by a large organisation or whether he had acted spontaneously, but took the view that the evidence pointed towards an element of premeditation.
The single judge refused leave to appeal against the sentence of three-and-a-half years' imprisonment, but leave was granted by the full court which observed that, in view of the judge's inability to reach any conclusion whether his conduct was premeditated or not and whether or not it was done for gain, it was arguable that three-and-a-half years' imprisonment was excessive, even following a contested trial.
This appellant is a man of 35. He has responsibility for a six-year-old son, although he is separated from his wife. He has one previous conviction in 1993 for an offence of an entirely different character.
The appeal is mounted on the basis that three-and-a-half years' imprisonment is excessive for an isolated offence involving one illegal entrant, with no evidence of financial gain or commercial operation and with no suggestion that this was in any way a sophisticated or prolonged undertaking.
The second appeal arises in this way. On 20 November 1997, at the Folkestone and Hythe Magistrates' Court, the appellant Rudi Kurt Heinrich Stark pleaded guilty to an offence under section 25(1)(a) of the Act and was committed for sentence under section 38 of the Magistrates' Courts Act 1980. In the Crown Court at Maidstone on 22 December 1997 he was sentenced to five years' imprisonment, and a confiscation order in the sum of 4,400 DM was made under section 71 of the Criminal Justice Act 1988. Leave to appeal was again refused by the single judge, but granted by the full court.
The facts were that on 18 November a German-registered Mercedes camper van arrived in the United Kingdom Immigration Zone at Coquelles in France. There appeared to be only two occupants of the van, the appellant and a gentleman named Oberbillig, who has subsequently been convicted following a trial. They were both German nationals and when asked how many people were travelling in the van they answered that two were travelling, namely the two of them. An officer inspected the van and saw a large number of bags and holdalls, which were explained as being bags which were being taken to friends in the United Kingdom. An officer was then asked to conduct a detailed search. Two men were found to be secreted in the luggage locker on the external passenger side of the vehicle. Inside the vehicle a woman and six children were found to be concealed under bedding in the bunk space above the cab. Two of those found in the vehicle were interviewed and gave an explanation that they had paid a large sum of Deutschmarks to be conveyed from Kosovo in the former Yugoslavia to this country.
The appellant was interviewed and admitted that he owned a courier business and that he knew that his hidden passengers were illegal entrants. He said that he had only been paid expenses of about 4,400 DM, and that Mr Oberbillig had only learned the purpose of the journey once it had begun. The appellant's explanation was that one of his employees who came from Kosovo had asked him to bring members of his family to the United Kingdom from Germany so that they would not be sent back to the former Yugoslavia.
The appellant, as is plain from the documents before us, is a man of previous good character, not only in the sense of having no previous convictions but in the sense of having a good work record and good character references.
It is plain from the authorities to which we have been referred and to which we shall return that in the ordinary way the appropriate penalty for all but the most minor offences against section 25(1)(a) is one of immediate custody. The offence is one which calls very often for deterrent sentences and, as the statistics make plain, the problem of illegal entry is on the increase. Plainly the seven-year maximum sentence must accommodate offences with the most aggravating features. 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...
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