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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 >> Avazi & Ors, R. v [2007] EWCA Crim 3443 (20 December 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3443.html Cite as: [2007] EWCA Crim 3443

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		20 December 2007

LORD JUSTICE LATHAM:

1. Before us are two sets of proceedings, one involving four applicants whose applications for leave to appeal against sentence have been referred to the full court by the Registrar. We give leave for them to appeal and proceed to deal with this matter as an appeal.
2. In separate proceedings there are two appellants who have been given leave to appeal against their sentences, one of whom (Golizadeh) applies for leave to appeal against conviction. We adjourned that application earlier this morning.
3. The appeals against sentence all arise out of the importation into this country of very substantial quantities of opium. The importation in relation to the four appellants Avazi, Darvishzadeh, Tahbaz and Masoumi-Ravandi involved 147.7 kilograms of opium which arrived in this country on 29 March 2006. The two appellants Golizadeh and Ghanbari-Monfared are concerned in a consignment of 158 kilogrammes of opium which arrived in this country on 6 January 2006.
4. Both consignments of opium were in lorries containing goods which were destined for the same consignee. There is therefore a clear connection between the two sets of proceedings, quite apart from the fact that they both raise similar questions in relation to sentencing by reason of the fact that the consignments in question are of opium.
5. The proceedings against the four appellants Avazi, Darvishzadeh, Tahbaz and Masoumi-Ravandi concluded in the following way. At the end of a trial which culminated on 20 March 2007, the jury convicted Avazi of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug. On 25 August 2006, Darvishzadeh had changed his plea to guilty to being knowingly concerned with harbouring or in any manner dealing with goods which were subject to prohibition on importation. On 21 February 2007, Tahbaz changed his plea to guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug. On 25 August 2006, Masoumi-Ravandi changed his plea to guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug (the same day on which Darvishzadeh had changed his plea).
6. On 6 July 2007, in the Crown Court at Kingston upon Thames, they were sentenced by His Honour Judge Campbell as follows. Avazi was sentenced to 16 years' imprisonment and a recommendation for deportation was made. Darvishzadeh was sentenced to four years' imprisonment and a recommendation for deportation was made. Tahbaz was sentenced to eleven years' imprisonment; a travel restriction order was made under section 33 of the Criminal Justice and Police Act 2001 for a period of five years; and a financial reporting order was made for a period of ten years. Masoumi-Ravandi was sentenced to 13 years' imprisonment; a travel restriction order was made under section 33 of the Criminal Justice and Police Act 2001 for a period of five years; and a financial reporting order as made for a period of fifteen years.
7. The facts were as follows. The lorry on which the opium had been loaded was driven from Iran by Avazi, who owned the trailer. He drove the lorry off the ferry at Dover docks on 29 March 2006. The drugs were not discovered at that point. An X-ray of the lorry was later checked by Customs officers who noticed a shaded area on the side of the lorry where the drugs were hidden. As a result the consignment was followed.
8. Avazi drove to Heston Services, where he was joined by Tahbaz who then drove to Bolton where they delivered the statues which made up the consignment on the trailer. They then drove to 24 Lymington Avenue in Yateley, Masoumi-Ravandi's home address. The three of them unloaded from the lorry the drugs, which were hidden inside wooden slats, and put them in the garage at 24 Lymington Avenue. On 3 April the three men, with the help of Masoumi-Ravandi's son, the co-accused, started to break up the slats to remove the opium. Tahbaz and Avazi drove to Brentford. On 4 April Masoumi-Ravandi drove to Tahbaz's address in Brentford. He took with him 2 kilograms of opium. On 5 April he drove back to Yateley and while he was at 24 Lymington Avenue Darvishzadeh arrived. A few minutes after he arrived officers raided the house and arrested those present. Tahbaz and Avazi were arrested in London.
9. There was a search of 24 Lymington Avenue. A bag containing 4.95 kilos of opium was found in the porch. Inside a fax machine were four bags containing 101.78 grams of opium. In the kitchen a set of scales was found containing traces of opium. In the garage was a white sack containing 47 packages of opium and in another bag there were 78 packages of opium. Outside the address in Darvishzadeh's car officers found £5,500 in cash, three packages containing opium and a set of electronic scales.
10. Tahbaz's address in Brentford was searched. Various amounts of opium, including slabs of opium, were found, as well as scales and £10,500 in cash.
11. In interview Masoumi-Ravandi made no comment. Tahbaz admitted that the opium found at his address was bought from Masoumi-Ravandi, but denied being party to its importation. Darvishzadeh said that he was an opium addict and had taken the £5,500 to buy opium from Masoumi-Ravandi.
12. The judge passed sentence on the appellants on the basis that the consignment was pure opium at 100 per cent. He concluded that Ravandi had played the leading part in the operation and that the opium was taken to his house. There were also a large number of calls between him, Tahbaz and Avazi. Although the importation of Class A drugs attracted heavy sentences, the judge gave near to maximum credit for the pleas of guilty that had been tendered. He bore in mind the fact that Masoumi-Ravandi was 50 years old, of previous good character and not in the best of health. He concluded that, had he not pleaded guilty, the sentence would have been one of 18 years. It was in those circumstances that he finally sentenced him to 13 years' imprisonment.
13. The judge concluded that Tahbaz had played an important part in the organising of the importation. He had provided Avazi with accommodation and had helped unload the trailer. He had been provided with opium for himself. He had £10,000 in cash at his home. He was given almost maximum credit for his plea. His sentence would have been 15 years' imprisonment had he not pleaded guilty. The sentence passed on him was eleven years' imprisonment, plus the financial reporting order and travel restriction.
14. Avazi had brought almost 150 kilograms of opium into the country and delivered it to Masoumi-Ravandi. He had played a vital role in the importation. He was of previous good character, but the least sentence that could be passed was 16 years' imprisonment. As his continued presence in the United Kingdom was detrimental, a recommendation was made for his deportation.
15. The judge sentenced Darvishzadeh on the basis that he had with him £5,500 to collect opium. He concluded that it was his intention to supply others. He had entered an early guilty plea and was given full credit for it, and for the fact that he had no relevant previous convictions. The sentence was four years' imprisonment; but the judge concluded that his continued presence in the United Kingdom was detrimental and a recommendation for deportation was made.
16. The basis of the appeals against sentence is that, in approaching the case on the basis that the opium was of 100 per cent purity, the judge approached the matter wrongly in principle. There are also subsidiary arguments about the respective parts each played in the story.
17. Before we turn to those arguments, we will set out the facts involving Golizadeh and Ghanbari-Monfared. In the Crown Court at Kingston upon Thames, before Her Honour Judge Barnes, both appellants pleaded not guilty but were convicted on 6 October 2006 on two counts of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of opium. On 24 March 2007, Golizadeh was sentenced to 22 years' imprisonment, with five years' imprisonment for the subsidiary count, to be served concurrently. Ghanbari-Monfared was sentenced to 18 years' imprisonment, with five years' imprisonment to be served concurrently for the subsidiary offence. Both appellants obtained leave to appeal against those sentences on the basis that the single judge considered that the case provided an opportunity for the full court to consider sentences for the importation of large quantities of opium.
18. The facts have obvious echoes of the facts in the other case. Both appellants were the subject of surveillance from the start of the story. They were noted to have travelled together to Tehran. On 25 December 2005, Ghanbari-Monfared returned. Golizadeh returned on 1 January 2006. Their luggage was examined. Paperwork included documentation which related to a vehicle belonging to Asgheer-Zadeh, the person who ultimately drove the opium in question to the United Kingdom, arriving at Dover on 6 January 2006. The lorry was then driven to London Gateway Services, where it was met by Golizadeh. Golizadeh and the driver of the lorry then went to Ghanbari-Monfared's home in Golizadeh's vehicle.
19. On 7 January 2006, they returned to the lorry in a hired van. The lorry and the van were then driven to the M1, where they were eventually stopped. The lorry was searched. 158 kilograms of opium were found concealed within wooden side panels. Golizadeh was arrested and searched. He was found to have two mobile phones. At his address were found £6,500 in cash, a fax machine, two satellite telephones and a notebook containing measurements which it was clear had been used in order to enable him to hire a van which was big enough to take the container in which the opium had been stored in the lorry.
20. Ghanbari-Monfared was arrested and searched. He was found to be in possession of two mobile telephones and £940 in cash. His address was searched. An opium kit, scales and paperwork were recovered.
21. There was a set of keys on the floor next to the driver's door of the hired van. That was discovered to include the keys to a lock-up in Sutton Road which contained residues of opium, scales, wrappings and work tools. The van also contained a package of 997 grams of opium.
22. The trial judge concluded that Golizadeh was the organiser and that Ghanbari-Monfared was his lieutenant. It was in those circumstances that the appellants were sentenced as they were. No point is taken on the differentiation of sentencing levels between the two of them. The submission made is that for importation of opium at this level the sentences were manifestly excessive. Although no issue was taken before the trial judge as to the purity or otherwise of the opium, that has been raised by both counsel appearing for the appellants in the light of the arguments to which we now turn and which have been made on behalf of the four appellants in the appeal which we dealt with first in this judgment.
23. We return to the submission which is adopted by all of the appellants. The position in the case of the consignment in which Avazi and his co-appellants were concerned was that there was evidence before the judge that the percentage of morphine (the main but not the only active ingredient of opium) was 4.5 per cent. The submission was made that opium of that grade is at the lower end of the scale in terms of its drug content. That is accepted by the prosecution to this extent: whilst a morphine content of as low as 2 per cent is known, the generally accepted range is about 4 per cent to 10 per cent. Accordingly, it is a drug strength which is within normal parameters, albeit towards the lower end of the scale.
24. The judge was expressly asked to determine the question of the basis upon which he would deal with the sentence by reference to the purity of the opium. In a formal ruling he held that he would treat it as being 100 per cent pure. The appellants challenge that basis upon which the judge approached the matter by reference in particular to the advice given by the Sentencing Guidelines Panel to the Court of Appeal when it considered the leading case in this area of R v Mashaollahi [2001] 1 Cr App R 106, BAILII: [2000] EWCA Crim 52 In its advice the Sentencing Advisory Panel's conclusion was as follows:

"15. We have concluded that, unless there is clear evidence in a particular case that a consignment of opium is intended for conversion into morphine or heroin, a sentencing guideline for the importation or possession of opium should be based on weight, cross-checked with street value to ensure that at least an appropriate equivalence with heroin and cocaine is maintained. For importation of opium, the appropriate guideline would be:

* 14 years and upwards for a consignment of 40 kilos or more of opium;

* 10 years and upwards for a consignment of 4 kilos or more of opium.

16. In line with the sentencing guidelines for other Class A drugs, an appropriate adjustment should be made to the sentence to take account of relative drug purity."

25. That passage in the Panel's advice was considered by this court in Mashaollahi. Having related the circumstances giving rise to the advice and noted that, in coming to the conclusions that it did, the Panel had made a comparison between heroin on the one hand and opium on the other. In giving the judgment of the court Rougier J said:

"11. .... with opium the position is different. It is a crude mixture of many different chemicals contained in the juice of the seed capsule of the opium poppy, papaver somniferum. Incisions are made in the capsule from which the latex oozes out and when collected and allowed to dry in the air forms a dark sticky mass known as raw opium. For non-medical purposes, such as either smoking or eating the substance, the raw opium is boiled in water, strained to remove insoluable materials and then evaporated to form a sticky paste known as prepared opium. The significant feature is that it is still the natural derivative of the plant, and, save exceptionally, it is not adulterated by the addition of any further substances. We consider therefore that, in line with the case of Warren and Beeley in relation to ecstasy and Hurley [1998] 1 Cr App R(S) 299, BAILII: [1997] EWHC Admin 715 in relation to LSD, the court should proceed on the assumption that any given consignment of opium is unadulterated and of 100 per cent purity. Should the defence wish, by way of mitigation, to persuade a judge that the active ingredient was of a lesser percentage, it is open to them to call the appropriate evidence.

12. Second, it was pointed out to us that the morphine constituent of opium tended to show a considerable variation. However, since we are dealing with the composite product of the plant, we think that any enquiry as to the percentage of one particular constituent, even though it is by itself a class A drug, would introduce a needless complication to the sentencing process.

13. The third point concerns the suggested cross-check by reference to the corresponding street value of heroin or cocaine. It will be seen that, upon analysis, though favouring weight as the predominant factor to be taken into account when sentencing, the actual tariff which the Panel arrived at was a reflection of the corresponding street value of the two other class A drugs. It was submitted to us that, even as a cross-check, this might produce potentially unjust or varying results if, for example, the price of heroin fell, or was appreciably lower in one particular area as opposed to another, depending upon the intensity with which the drug was marketed.

14. But we remind ourselves that the Panel declared that the equivalent heroin or cocaine value formula was one to be treated with considerable reserve. And by this we conclude that, even as a cross-check, it was not to be regarded as appropriate or mandatory in every case. If the sentencing judge is presented with evidence which persuades him that a calculation based on the equivalent street value of heroin or cocaine would produce an unacceptably high sentence for offences concerning opium, he would be entitled to disregard any cross-check based on such a calculation. ...."

26. Before us it has been submitted that where the Panel and the court talked about "purity" they intended to refer to the percentage of the active ingredient, in particular morphine, within the consignment. It is submitted that in those circumstances it is plain that, in determining that he should approach the matter on the basis of 100 per cent purity, the judge clearly fell into error.
27. We disagree. In our judgment it is quite plain from a proper reading of the Panel's advice in full and the court's judgment in Mashaollahi, that purity is a reference to the question of whether or not there has been any adulteration of the consignment of opium. There was no evidence in this case of any contamination or adulteration of any sort. Accordingly, the judge was entitled to approach this case on the basis that this was opium of 100 per cent purity. That does not mean that, in determining the appropriate sentence, ultimately it would not be relevant to consider that the morphine content was not at the highest end of the concentration of morphine that is to be found in opium. That seems to us to be a matter which is important when trying to determine the extent to which, having approached it on the basis of the guidelines, the figure ultimately decided upon by the judge as the appropriate figure for sentencing is one which is significantly out of kilter with the equivalent heroin or cocaine quantity and sentences imposed for such importations. Such a cross-check is clearly indicated as a matter that the court can carry out although, as this court said in Mashaollahi, it is not in every case mandatory.
28. At the end of the day we must look in the case of the appeal by the four appellants at whether or not it can sensibly be said that the judge's assessment of that importation justified the sentence at the top end of the criminality involved in the case of Masoumi-Ravandi of 18 years' imprisonment. That seems to us to be the bench mark against which we should look at all the sentences in that case.
29. Returning to the Panel's advice that a sentence of fourteen years' imprisonment is appropriate for a consignment of 40 kilograms, we can see nothing wrong with the judge's assessment that 18 years was the appropriate figure to take in this case on the basis of the size of this consignment. The fact that it had a morphine content of only 4.5 per cent does not seem to us to indicate on the evidence that either the judge had or we have that that figure is in any way out of line with the sort of sentence that would be appropriate for a consignment of heroin or cocaine which had the equivalent drug effect.
30. That being so, we turn to consider the way in which the judge's approach to the individual sentences could in any sense be said to give rise to concern as to disparity. We cannot find any material in the papers before us to suggest that this judge, who had had an opportunity to hear the full trial of Avazi and the evidence given both at the time of the tendering of the pleas and in the trial of Tahbaz so long as that continued, was wrong. The position the judge took seems to us to be entirely justified.
31. Clearly the appellant Darvishzadeh was in a different category. He was not directly involved in the importation itself. But since the judge concluded, with justification, that he did not simply buy opium for himself but for the purpose of sale to others, we do not consider that the sentence that was imposed on him was one which could sensibly be said to be manifestly excessive.
32. We turn to the only remaining aspect of the orders that were made by the judge which has been subject to criticism, that is the travel restriction order that has been imposed in Masoumi-Ravandi's case. It is said that, if any travel order was appropriate, the five year order was too long. We can see no reason why a travel restriction order should not have been imposed in the circumstances of this case, particularly bearing in mind the connections which Masoumi-Ravandi retains with Iran. This was a clearly sophisticated, well-planned importation. The material for making a travel restriction order was clearly present; and five years was a perfectly appropriate period.
33. We dismiss the appeals against sentence in the case of all four appellants in that appeal.
34. The position in relation to the appellants Golizadeh and Ghanbari-Monfared is different to this extent. There was no evidence before the judge as to the morphine content of the opium that they imported. However, it is said to be more than coincidence that the consignee of the lawful goods in the lorry was the same consignee as in the other case. It is submitted that, bearing in mind the similarities between the two cases, there is here clear disparity between the sentences imposed on Golizadeh and Ghanbari-Monfared and the sentences imposed on the other four appellants.
35. It may be that the result is that they are beneficiaries of the coincidental listing of these proceedings. But, on the other hand, it seems to us that justice would not properly be seen to be done if their sentences remained so substantially and significantly different from the sentences imposed on the other four appellants. We have been asked by Mr Bennathan QC on behalf of Golizadeh to adjourn the appeal to await the enquiries which, it is said, will necessarily take place for the purposes of pursuing the application for leave to appeal against conviction. But it seems to us that we can deal with the matter without the need for such an adjournment. We conclude that the right course is to allow the appeal against sentence in the case of both of them by reducing the sentence in the case of Golizadeh to one of 18 years' imprisonment and in the case of Ghanbari-Monfared to 15 years' imprisonment. That seems to us to reflect the equivalent status of the two of them in this offence with those to whom their position might be compared in the other.
36. There remains only one other matter. Subsequent to the sentences to which we have referred, proceedings have been taken against both of them not only in relation to confiscation orders, but also there has been an application by the prosecution that an order be made under section 76 of the Serious Organised Crime and Police Act 2005 that there should be a financial reporting order. As we have indicated, the judge has made such an order. Section 76 provides:

"(1) A court sentencing or otherwise dealing with a person convicted of an offence mentioned in subsection (3) may also make a financial reporting order in respect of him.

(2) But it may do so only if it is satisfied that the risk of the person's committing another offence mentioned in subsection (3) is sufficiently high to justify the making of a financial reporting order."

37. It is submitted on behalf of Ghanbari-Monfared that the judge was wrong to make an order in the present case. He did so at a time when the appellant did not have a full opportunity to put together an argument against the making of such an order. It is said that the judge appears to have approached the matter wrongly by confusing the question which she had to ask as a result of the requirements of subsection (2). It is clear that the judge discussed with counsel concepts of the burden and standard of proof which are not relevant to the exercise to be carried out in such a situation. It is the same exercise as the court carries out when it determines the question of whether or not an offender is dangerous for the purposes of sentencing under Chapter 5 of the Criminal Justice Act 2003. It is a question of evaluation and judgment.
38. There is no doubt that on the material before the judge here there was only one answer to which she could come. That was that there was material which met the criteria. In those circumstances we can see no justification for interfering with the order that she made. We refuse the application in that respect.
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