R v Sivan
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 04 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Crim J0704-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos. 521/A3/88 523/A3/88 and 524/A3/88 |
| Date | 04 July 1988 |
[1988] EWCA Crim J0704-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice McCowan
and
Mr. Justice Hutchison
Nos. 521/A3/88
522/A3/88
523/A3/88
and
524/A3/88
MR. S. D. BATTEN appeared on behalf of the Applicant Sivan.
THE APPLICANT FERMAN was not present and was not represented.
MR. P. KELEHER appeared on behalf of the Applicant Shtrowise.
MR. A. RAWLEY, Q.C. appeared on behalf of the Applicant Greenfield.
MR. P. BEAUMONT, Q.C. and MISS P. LYNCH appeared on behalf of the Crown
On 8th January this year at the Central Criminal Court these applicants, Asher Sivan, Vschak Ferman, Moshe Shtrowise and James Greenfield, pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis resin, and were sentenced as follows: Greenfield to six years' imprisonment, and each of the other three to ten years' imprisonment. Ferman, Sivan and Shtrowise were also recommended for deportation.
They all now apply for leave to appeal against their sentences, and in each case we grant that application and treat this hearing as the hearing of the appeal.
The facts of the case are these. On 22nd May 1986 a ship arrived at Felixtowe from the Lebanon. It had as part of its cargo a very large container. According to the manifest it had inside it 160 cartons of Pine furniture. This container was the subject of suspicion by the officers of the Customs and Excise. It was examined. A rear external wall was removed and there concealed was found a very large quantity of cannabis resin: something like 1800 kilogrammes of resin, which we are told was getting on for 2 tons, with an estimated street value of about £4 million Sterling.
To cut a long story short, the Customs officers kept the container under observation. Arrangements for the container's transportation and storage were made by Greenfield, who it seems was a late recruit to the enterprise. By the end of May all four appellants were in London and Greenfield, Sivan and Shtrowise were seen together by the officers keeping surveillance in Streatham, added to which Shtrowise's fingerprints were on the bill of lading and on an invoice which related to this container.
Early June saw the container moving from Felixtowe to Sheffield. Shortly afterwards Sivan and Shtrowise drove to Manchester where they met Greenfield, and the container itself was moved from Sheffield to Manchester, Sivan and Shtrowise keeping a close eye upon it.
The final move of the container was to Brentford on 9th June, and that move was organised by Ferman. Once again Sivan and Shtrowise were keeping watch.
11th June came and that was the date when the Customs officers, so to speak, sprung the trap. They arrested Sivan and Ferman. On the next day Greenfield and Shtrowise were arrested.
According to the prosecution these were the roles played by the respective appellants. Greenfield was the man responsible for organising the details of what happened to the container and for some of the documentation. He was not responsible either for the shipping or for the concealment of this consignment of cannabis. Ferman was the last person involved in the moving of the container from Manchester as we have already indicated. Again, as has been apparent from this short summary, Sivan and Shtrowise kept observation on the container from Felixtowe to Sheffield and on to Manchester and on to London.
They were interviewed by Customs officers. They made no admission. But very shortly after the arrest Greenfield made it known that he was prepared to co-operate with the Customs officers. He then made a statement which, if we may say so, was patently true, in which he set out precisely the roles played by himself and by the others and indicated at the same time as he was making that statement that he was prepared, if necessary, to give evidence against his co-conspirators.
It seems to have been accepted throughout that the other three, apart from Greenfield, were in a somewhat subordinate role, that is to say they were not the organisers of the conspiracy, nor did it seem were they the people who were going to get the profit, such as it might be, from the sale of this cannabis. Indeed the amount of money which Sivan and the other two were likely to be making out of this enterprise varied between £20,000 and £25,000. They did not of course get it in the end.
The way in which this appeal has been advanced by counsel, to whom we are grateful for the careful and clear way in which they presented their clients cases, has been this. Sivan, Ferman and Shtrowise all complain that the learned Judge's starting point for the calculation of the correct sentence was too high. The way in which they put the matter is this. The maximum sentence for this type of importation of this class of drug is fourteen years. These men were not the organisers. They were, it was accepted, in a subordinate role. Furthermore they pleaded guilty. So the argument goes, one has to start off at a figure less than fourteen years, and from that slightly reduced figure one then has to give credit for the plea of guilty.
These matters of course are not subject to anything like arithmetical calculation. It cannot be done. But what is pointed out, and pointed out correctly, is that the learned Judge, through very little fault, if any, of his own, was misled by two features. The first was a case which was drawn to his attention, Farrant and Warnes (unreported), a decision of another division of this Court on 26th November last year, in which the facts were somewhat similar to those in the present case. One of the two principals, so the Judge found, in that case was Farrant. Farrant was sentenced to a term of of ten years' imprisonment. The learned Judge was under the impression that Farrant had pleaded guilty and that the ten years was a reflection upon that. In fact Farrant had not pleaded guilty. He had fought the case, and so the Judge was under that misapprehension.
The second misapprehension arose from a misprint in Thomas's Encyclopaedia of Current Sentencing Practice. In that valuable publication at page 2493 appears the synopsis of the case of Mitchell (1986) 8 Cr. App. R. (S) 472. The learned Judge did not have the law report proper, but was relying on the Encyclopaedia. In the summary given by David Thomas appear these words: "The appellant pleaded guilty to two counts of knowingly being concerned in the evasion of the prohibition on the importation of cannabis. He had been cncerned in the importation of a total of over 80 kilogrammes of cannabis in two consignments. Sentenced to ten years' imprisonment." The learned Judge remarked upon that in his sentencing observations. In fact the true figure as appears from the law report proper is not 80 kilogrammes but 800 kilogrammes of cannabis. So to that extent the Judge was under a misapprehension.
Without those two possible misapprehensions, it would have seemed to us that the learned Judge's reasoning was almost certainly correct, and that the ten years' imprisonment which he imposed upon Sivan, Ferman and Shtrowise was accurate. However in the light of those mistakes and in the light of the fact that because of those mistakes the appellants may very well think that they have been dealt with harshly, we think that some small adjustment should be made to the sentences of all three.
So far as Ferman and Shtrowise are concerned therefore, what we propose to do is to reduce the sentence on them by one year and one year only, from ten years' imprisonment to nine. To that extent the appeal of those two is allowed.
I turn now, before dealing with Sivan, to whom certain different considerations apply, to the case of...
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