R v Bilinski
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 04 August 1987 |
| Neutral Citation | [1987] EWCA Crim J0804-2 |
| Judgment citation (vLex) | [1987] EWCA Crim J0804-6 |
| Court | Court of Appeal (Criminal Division) |
| Date | 04 August 1987 |
| Docket Number | No. 1958/A/87 |
[1987] EWCA Crim J0804-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Farquharson
and
Mr. Justice Hutchison
No. 1958/A/87
MR. R. NEILL appeared on behalf of the Appellant.
MR. S. BARHAM appeared on behalf of the Crown.
On 20th February 1987 in the Crown Court at Chelmsford the appellant pleaded guilty to importing 3.036 kilogrammes of heroin into the United Kingdom. He was sentenced to 12 years' imprisonment. Against that sentence he now appeals by leave of the single judge.
The material facts are as follows. On 7th November 1986 the M.V. Gdansk II was searched at Tilbury by Customs Officers. They discovered three packages containing white powder subsequently found to be heroin hidden behind a wiring duct 30 feet above the deck. Suspicion fell on the appellant who was a senior member of the crew. He was questioned in Polish through an interpreter. He denied all knowledge of the packages. However, his fingerprints were found on the sticky side of adhesive tape binding the packages. At first he said that he did not know "by what miracle" his prints had been placed there. The following day on further questioning, however, he admitted that he was responsible for the packages being on board. He had been approached by two Polish men at a time when his finances were at low ebb. They had suggested he should assist them in transporting drugs from Hamburg to Sydney via Tilbury. He was to be paid the equivalent of some £3,500 in US Dollars. The size of the reward, he said, clouded his judgment. He was given the packages in Hamburg. According to his story, he was told that the drugs were cannabis. When they were handed to him the packages were malleable and wrapped in transparent plastic. He could see a white powder inside. He had later wrapped and secured them in further plastic material (hence the fingerprints) in order to protect the contents from the damp, because he had been told to be careful to prevent them from coming to any harm. He said he did not recognise the powder as heroin; he had never seen heroin before; the two men had told him the drug had come from the Far East, but even then he did not realise it might be heroin. Amongst other items found in the appellant's cabin was a book entitled "Heroina", which we are told is the Polish for heroin. Surprisingly this volume had come from the ship's library.
The heroin was of very high purity - 90%. Its street value in this country was in the region of £600,000.
The mitigation was in essence based on four matters:
(1) The appellant thought he was smuggling cannabis not heroin.
(2) He had pleaded guilty and given what assistance he could to the authorities in the shape of the names of his suppliers.
(3) He was only a courier whose reward as it transpires was to be a minute fraction of the value of the drugs.
(4) He was of hitherto good character.
Steyn J., in the course of passing sentence, said this:
"It is pointed out that you believed that the drug was cannabis which you knew to be illegal to import into this country. It is said that you did not know that it was heroin. I regard that (and I make that clear) as irrelevant. If I were to take that into account, then every courier and every dealer found in possession of heroin would be able to say that he thought it was not a Class A drug. In a practical world, the courts will, as a matter of policy, not regard such matter as reducing moral blameworthiness. If it had been relevant, I would have directed an issue to be tried on it, but I find that it is irrelevant."
Mr. Neill makes two submissions to this court:
(1) That the judge was in error in regarding the appellant's belief as to the nature of the drug as irrelevant so far as sentence was concerned. (2) That the sentence of 12 years was in any event too long.
As to the first submission, it is of course no answer to the charge of importing a Class A drug that the importer thought it was a Class B drug. The plea of guilty does not therefore indicate the nature of the appellant's belief. If his belief is irrelevant to sentence, the judge need not concern himself with what that belief might have been. If, however, belief is relevant and is in dispute, what should the judge do to ascertain the truth?
Is it relevant? On the one hand is the argument that anyone who chooses to engage in smuggling prohibited drugs must accept the risk that the drug is of a kind different from that which he believes or has been told it is. In addition there is the "floodgates" argument expressed by Steyn J. in the passage we have just cited. On the other hand, submits Mr. Neill, if a defendant genuinely has been misled as to the type of drug, then in light of the fact that the maximum sentence for importing heroin is imprisonment for life as against the 12 years maximum for importation of cannabis, it would be unjust not to allow some mitigation at least of the punishment. The latter view is certainly that which has been taken by this court in earlier decisions, of which R. v. Ghandi (1987) Crim. L.R. 205 is one. In that case the primary question before the court was whether the judge, having heard evidence from the defendant as to his belief that the heroin which he had imported was cannabis, was wrong in rejecting that evidence. Neither counsel nor this court suggested that the defendant's belief was irrelevant.
We are of the view that the defendant's belief in these circumstances is relevant to punishment and that the man who believes he is importing cannabis is indeed less culpable than he who knows it to be heroin. It should be said that Steyn J. was apparently not referred to any authority on the point. To what extent the punishment should be mitigated by this factor will obviously depend upon all the circumstances, amongst them being the degree of care exercised by the defendant.
How should the issue be determined? In some cases no doubt it will be necessary for the judge to hear evidence on the principles set out in R. v. Newton (1982) 4 Cr.App.R. (S) 588. If that procedure had been adopted in the present case, as Steyn J. says it would have been had he considered the point to be relevant, the appellant would probably have been the only witness, apart perhaps from someone to speak as to the street value of these packages had they contained cannabis rather than heroin. It is difficult to see what the appellant could have said other than that which he had already stated in his interviews with the Customs Officers. If so, it is scarcely likely that the judge would have been in any doubt but that the appellant must have known that the substance was heroin. Indeed the case almost if not entirely falls within the ambit of the decision in R. v. Hawkins (1985) 7 Cr. App.R. (S) 351. Where the defendant's story is manifestly false the judge is entitled to reject it out of hand without hearing evidence. Whether that is so or not, we take the view that the exercise of only a small degree of curiosity, enquiry or care would have revealed the true nature of the drug in this case and that accordingly the mitigating effect of the belief, if held, was small.
The next question is what the proper sentence should be for the carrier/importer of this quantity of 90% pure heroin. The guidelines in R. v. Aramah, as was pointed out in R. v. Gilmore, The Times, 21st May 1986, must be updated to take account of the fact that the maximum sentence for the importation of Class A drugs has now been increased by the Controlled Drugs (Penalties) Act 1985, from 14 years to life imprisonment. It was suggested in Aramah that where the street value of the consignment is in the order of £100,000 or more, sentences of 7 years and upwards are appropriate, and that 12 to 14 years imprisonment is appropriate where the value of the drugs involved is £1 million or more. The former figure should now be increased to 10 years and upwards and the latter to 14 years and upwards.
Thus a term of 12 years or thereabouts would have been appropriate for this level of importation in the absence of any mitigating features. There are, however, these matters to be taken into account in mitigation of the penalty. First, the plea of guilty. Secondly, the fact that the appellant gave all the help which he could to the authorities by naming his suppliers and, thirdly, for what it is worth, the possibility (in the absence of a finding to the contrary by the judge) that the appellant may have believed the drugs to be cannabis. We think that in the light of those factors, and taking into account all the circumstances of the case a term of 8 years' imprisonment would have been appropriate.
We only wish to add this. It may no doubt be tempting for those who are caught smuggling heroin to say that they thought it was "only cannabis". If such an assertion is persisted in before the court of trial and is plainly incredible, the judge will be justified in declining to hear evidence on the matter (see Hawkins supra). Our attention has been drawn to R. v. Mackenzie (1985) 7 Cr.App.R.(S) 441, in which this passage occurs in the judgment of the two-judge court (at page 443):
"We have a good deal of sympathy with the recorder. The defence version was plainly absurd. Nonetheless, she ought not to have sentenced him, as she clearly did, on the prosecution version without more ado….." The court's attention in that case was not drawn to the decision in Hawkins, which had been delivered six weeks previously. If the story is truly absurd it is a waste of time to call evidence which can only repeat that...
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