R v Nazari
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 14 March 1980 |
| Neutral Citation | [1980] EWCA Crim J0314-5,[1980] EWCA Crim J0314-4 |
| Judgment citation (vLex) | [1980] EWCA Crim J0314-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos. 4096/B/79: 1501/A/79: 4975/B/79: 4869/B/79: 4319/B/79 |
| Date | 14 March 1980 |
[1980] EWCA Crim J0314-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Boreham
and
Mr. Justice Comyn
Nos. 4096/B/79: 1501/A/79: 4975/B/79: 4869/B/79: 4319/B/79
MR. R. HARVEY appeared as Counsel on behalf of the Applicant Nazari.
MR. S. HOPKINS appeared as Counsel on behalf of the Appellant Dissanayake.
MR. C. I. A. SINIKANWA appeared as Counsel on behalf of the Applicant Anyanwu.
MR. J. LAWS appeared as Counsel on behalf of the Crown.
THE APPLICANTS Fernandez and Adamson were neither present nor represented by Counsel.
These three applicants and one appellant either appeal or apply for leave to appeal against sentence, which in each case included a recommendation for deportation.
During the last decade this Court has from time to time indicated the principles upon which orders recommending deportation should be made. It has been suggested that some of the decisions are conflicting. As a result it was decided that four cases raising different matters for consideration should be heard one after the other so that the Court would have an opportunity of reviewing the principles which are applicable. It is first necessary to set out the facts of each case so far as they are relevant.
REG. v. NAZARI
On 7th September, 1979 in the Crown Court at Reading Fazlollah Nazari pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug. He was sentenced to four years' imprisonment and recommended for deportation.
He is a young man of Iranian citizenship. In the summer of 1979 was studying at a polytechnic in the London area. He arrived at Heathrow Airport on 19th June, 1979, carrying a black suitcase. Customs officers were suspicious about the suitcase. He was allowed to pass through the Customs but was kept under observation in case he met somebody and handed over the suitcase. He did not meet anybody. Before he left the airport he was detained. The suitcase was opened and found to contain 1.95 kg of opium in the form of sticks. It was accepted by the prosecution that opium in that form could not be converted into heroin.
There is no application for leave to appeal against the sentence of four years' imprisonment, which was in line with the kind of sentences which are passed upon those who try to smuggle dangerous drugs into the United Kingdom.
Complaint is made about the recommendation for deportation. Mr. Harvey on this applicant's behalf has called attention to what might be called the general compassionate grounds relating to this young man. It is said that if he is deported he will not be able to continue his studies in England; that he will probably be separated from the English girl whom he hopes to marry, and that he is not likely to commit this kind of offence again. But the major part of Mr. Harvey's submission was directed to the proposition that if the applicant is deported he will be sent back to Iran, where the present government is likely to take a very serious view of his activities and he may face a court which will have jurisdiction to pass, and may pass, sentence of death upon him.
The evidence relating to what is likely to happen to the applicant if and when he returns to Iran is unsatisfactory. So far as the learned trial Judge was concerned, a statement to the effect stated above was set out in the social inquiry report. The probation officer who made it said that at some date which he did not specify he had spoken on the telephone to somebody at the Iranian Embassy who had confirmed that very serious consequences would befall this applicant if he returns to Iran. Before this Court today Mr. Harvey informed us that he personally had spoken to Professor Coulson, of the School of Oriental Studies of London University, who had told him that the type of consequences which have been indicated might befall the applicant. In addition Mr. Harvey put in an affidavit sworn by an Iranian holding a degree in law who is at present an articled clerk with a firm of solicitors. He deposed that under Iranian law serious consequences, including the death penalty, could fall upon anyone who imported dangerous drugs. What he meant by importing dangerous drugs was not clear. We do not know whether the deponent was talking about importation into Iran or into the United Kingdom. It seems odd that any Iranian court would have jurisdiction over somebody who was arrested for importing dangerous drugs into the United Kingdom.
In this class of case, when it is suggested that unpleasant consequences are likely to follow for anyone recommended for deportation if the Home Secretary makes an order of deportation, it is essential that proper evidence should be before the Court; the Court cannot act on the kind of evidence which has been put before it in this case.
REG. V. DISSANAYAKE
We turn to the next case, that of Rohan Shivantha Dissanayake. Leave to appeal against sentence has been granted to him by the Single Judge. Mr. Hopkins, who has appeared on behalf of the appellant, has urged upon us that the sentence of imprisonment, as well as the order recommending deportation, was wrong.
On 12th March, 1979 at the Central Criminal Court, before Mr. Justice Melford Stevenson, the appellant, who had been indicted for murder, pleaded guilty for manslaughter, the basis of his plea being diminished responsibility. There was in addition a suggestion, but no more than a suggestion, that he had been provoked into doing that which he did. He was sentenced to five years' imprisonment and recommended for deportation.
On 25th February, 1977 the appellant married a 26-year-old girl called Mary Morgan. It was alleged by the Crown that this was a marriage of convenience which would enable the appellant, as a citizen of Sri Lanka, to remain in this country. We are not concerned with that allegation at all. Just before midnight on 10th September, 1978, following a day-long argument with her, the appellant killed his wife in the living-room of their flat by striking her a number of times on the head with a heavy wooden ornament. She was rendered unconscious. There was a good deal of blood shed. He dragged her body on to the balcony of the flat, mopped up some of the blood, changed his clothes, telephoned the police and called in the neighbours. When the police arrived he said that he had returned from a walk to find his wife dead on the balcony. At all subsequent interviews until 6th March, 1979 he denied all knowledge of the killing. Then he admitted that he and his wife had had a disagreement on 10th September when she demanded money and threatened to end their marriage. On 6th March, 1979 he made a written statement in which he said that he and his wife had met on the morning of the offence; that she had been vindictive and aggressive throughout the day; that she had insulted him and his family; that she had demanded money from him and had attempted to persuade him to join her in defrauding the social security authorities; that she had threatened to have him evicted from his flat and sacked from his place of work, and that when he had asked her to stop she had used a most insulting phrase about his mother, to whom he was deeply attached.
After his arrest the usual inquiries were made about his mental condition, and a number of doctors with psychiatric qualifications came to the conclusion that he was an immature man both physically and mentally.
It is against that background that we have to consider, first, whether the sentence of five years' imprisonment was right, and, secondly, whether this was a case in which there should have been a recommendation for deportation.
So far as the sentence is concerned, in our judgment it was clearly right. This man was fortunate in that his counsel persuaded the learned Judge to accept a plea of manslaughter by reason of diminished responsibility on an indictment charging him with murder. The degree of diminished responsibility does not appear to us to have been very substantial; and it is not without significance that in one of the medical reports the word "substantial" was left out. Be that as it may, the learned Judge accepted the plea on the basis of diminished responsibility.
It is said that the learned Judge did not take into account as he should have done the evidence relating to provocation. As we have indicated, that evidence came very-late in the day; although it should be said that a friend of the appellant's, Mrs. Boyle, gave some evidence corroborating his tardy story of provocation. In our judgment men who batter their wives to death should consider themselves fortunate to receive a sentence as light as five years. It could have been much longer without in any way being excessive.
In our judgment there is nothing in that part of the appeal which relates to the sentence of imprisonment. We will consider the recommendation for deportation in the light of the observations that we propose making after we have recounted the facts of the two other cases.
REG. V. ANYANWU
The case of Ebenezer Chukwuma Anyanwu is very straightforward. On 22nd October, 1979 in the Crown Court at Kingston-upon-Thames he was convicted after a four-day trial of remaining in the United Kingdom beyond the time-limit, contrary to s. 24 (l) of the Immigration Act 1971. He was fined £50, with two months' imprisonment in default, and ordered to pay the costs of the prosecution up to a maximum of £150. We find...
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