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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lau, R. v [2025] EWCA Crim 111 (22 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/111.html Cite as: [2025] EWCA Crim 111

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT GLOUCESTER
HHJ HAMMERTON CP No: 91HQ2451824

		Royal Courts of Justice Strand London WC2A 2LL
		22 January 2025

1. MRS JUSTICE HEATHER WILLIAMS: On 3 September 2024, having pleaded guilty before Uxbridge Magistrates' Court, the applicant was committed for sentence pursuant to section 14 of the Sentencing Act 2020 in respect of an offence of being concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of class B (cannabis), contrary to section 3 of the Misuse of Drugs Act 1971.
2. On 11 October 2024 in the Crown Court at Isleworth before His Honour Judge Alistair Hammerton ("the Judge") the applicant, then aged 69, was sentenced to 12 months' imprisonment.
3. The Registrar has referred the applicant's application for a three day extension of time and for leave to appeal against his sentence to the full court, granting a representation order for Mr Cheema.
4. The facts

On 1 September 2024 at 9.10 pm the applicant was intercepted by a Border Force officer at passport control at Terminal 2 at Heathrow Airport having recently arrived on a Thai Airways flight from Bangkok. The applicant stated he was in London on holiday and had travelled alone. At the baggage reclaim hall he retrieved a soft sided suitcase for which the reclaim tag matched his boarding pass. The applicant went through the green customs channel where he stated he had nothing to declare to customs officers. The applicant confirmed the suitcase was his and that he was aware of the contents. His suitcase was subsequently examined and customs officers found 34 vacuum-packed packages which were thought to be herbal cannabis. The applicant was arrested by Border Force officers for the index offence. The packages were subsequently analysed and gave a positive result for cannabis.

5. On 2 September 2024 the applicant was interviewed and gave a prepared statement stating he had accrued debts and had been paid to take a suitcase to London. The applicant said he was told the suitcase contained birds' nests and herbal medicine and that he was not allowed to look inside.
6. The total weight of the cannabis seized was just under 17 kilograms. It had a street value of £510,000.
7. The applicant has no recorded previous convictions. There was no pre-sentence report.
8. The sentencing decision

The Judge indicated that he would give the applicant full credit for his early guilty plea. In terms of the categorisation of harm under the relevant offence guideline, the Judge reminded himself that the indicative quantity of cannabis for a Category 3 offence was six kilograms, whereas for Category 2 it was 40 kilograms. He considered that the harm relating to this offence was more appropriately categorised as falling in the upper part of Category 3 harm, with an appropriate adjustment to the starting point. In terms of culpability, the Judge accepted the prosecution's characterisation that there were elements of a lesser role, namely that the applicant had a limited role under direction, but also an element of a significant role as the applicant had an expectation of significant financial advantage. This was to be inferred from the value of the drugs that had been entrusted to him and as he had travelled to the United Kingdom in anticipation of receiving money to repay his debts.

9. In light of these circumstances, the Judge took an adjusted starting point of 22 months. It is unnecessary to say more about that aspect, as the Judge's approach in that regard has not been criticised by the applicant.
10. The Judge noted that there were no aggravating factors. He took account of the following mitigating factors: the applicant's previous good character, his health problems that he had been experiencing in custody; and prison conditions, particularly the difficulties that prison posed for him, given that the applicant's first language was Mandarin Chinese and his English was limited.
11. In light of this mitigation the Judge reduced his 22 month figure to 18 months. He then reduced this by a third to 12 months to reflect the guilty plea.
12. The Judge declined to suspend the term of imprisonment. His reasoning was as follows:

"I make clear that I have had careful regard to the case of R v Ali (Arie) [2023] EWCA Crim 232 and to the Sentencing Council's guidelines for the imposition of community sentences. In my judgment those who import commercial quantities of drugs into this country for financial motives must expect an immediate prison sentence, save in exceptional circumstances. I do not consider that there are any exceptional circumstances in your case. You knew that what you were doing was illegal, and you did so, in part, because you were tempted by the money which you needed to repay your debt.

I, therefore, consider that the only appropriate punishment for you is an immediate custodial sentence."

13. The grounds of appeal

There is a single ground of appeal, namely that the Judge misapplied the law in respect of the suspension of custodial sentences by imposing a test of "exceptional circumstances". The Over-arching Guideline in respect of the Imposition of Community and Custodial Sentences does not require offences to overcome such a high threshold or additional test in order to be eligible for suspension.Furthermore, had the Judge weighed up all the factors for and against suspension, the sentence imposed ought to have been suspended on the facts of the present case, in particular, given the applicant's age, his lack of previous convictions and his health issues. Accordingly it is said that the sentence was wrong in principle and/or manifestly excessive.

14. The respondent's position

A Respondent's Notice has been filed which seeks to rely upon a statement dated 16 January 2025 made by Andrew Noyes, a National Crime Squad Senior Operations Manager regarding cannabis importation through London Heathrow Airport. We do not admit this evidence. It is unnecessary for us to do so in order to determine the issues before us.

15. Analysis and conclusion

We proceed directly to consider the substantive merits of the application for leave to appeal. If it had merit we would grant the three day extension of time that would be required. However, for the reasons that we will explain we are not persuaded that the ground of appeal is reasonably arguable. Accordingly there is no value in granting the extension of time.

16. We do not accept that the Judge misdirected himself in the way that Mr Cheema alleges. The Judge had the Imposition Guideline in mind, as he referred to it. He did not proceed on the basis that he could only suspend the sentence if there were exceptional circumstances. Rather, his reasoning shows that he regarded the crucial factor in this case as being that appropriate punishment could only be achieved by immediate custody. That is a specifically recognised basis for imposing an immediate custodial sentence under the guideline. It was in the course of explaining why he considered this factor was made out in the present case that the Judge indicated that those who import commercial quantities of drugs into this country for financial gain can expect an immediate prison sentence in the ordinary course of things. We reject the suggestion that the Judge was improperly fettering his discretion. In so observing he was simply applying the guideline factors to the circumstances before him and explaining why the nature of such serious offending would very often require an immediate custodial sentence.
17. Furthermore, and in any event, we consider that given the nature of the offending and the value of the drugs involved, the Judge was fully entitled to conclude that the offence was too serious for him to suspend the term of imprisonment.
18. Accordingly, we decline to grant the extension of time sought and refuse leave to appeal this sentence.
19. We note for completeness that the applicant has recently been deported.