Family


Breach of injunction - committal orders - custodial sentences - domestic violence - sentence length - seriousness of offence

Patel v Patel: CA (Civ Div) (Lords Justice Laws, Lloyd): 12 April 2007

The appellant husband (H) appealed against a decision of a judge to grant an application for a committal order made by the respondent wife (W).



H and W had separated after a history of domestic violence. H breached the non-molestation orders to which he was subject and W applied for H to be committed to prison. The judge imposed upon H a custodial sentence of four months but suspended the committal order for one year subject to various injunctions. The judge also made a residence order placing the parties' five daughters with W but made no order in respect of their son, who continued to live with H. Six weeks after the orders were made, W asked H to come to her house to speak to an insurance assessor. Once the assessor had left, W asked H to leave but H refused and proceeded to intimidate and threaten her in breach of the injunctions. W applied for a further committal order.



The judge, having regard for H's denial that the incident occurred and his history of violence, but also for mitigating factors such as H's medical condition and the fact that he was caring for his son, lifted the suspension on the committal order and imposed an additional period of six months. H submitted that the sentence imposed was manifestly excessive and wrong in principle, A v A [2004] EWCA Civ 504, [2004] The Times, 15 April, cited. H argued insufficient weight had been attached to the impact of such a lengthy sentence on the state of his health and on his son.



Held, it could not be said that the judge had imposed a manifestly excessive sentence. The instant case was serious and the judge was entitled to regard it as such. Although the incident that caused the breach was not in itself particularly grave, consideration had to be given to the cumulative effect of successive incidents and to the fact that W had regarded herself as under the protection of the suspended committal order for which H had no regard. The state of H's health was a relevant factor but it would need to have been more serious for it to be considered as a genuine reason for imposing only a non-custodial sentence. The care of H's son was also relevant but the fact that he was not subject to any residence order showed that his status was an open question.



Appeal dismissed.



S Dent (instructed by Hamilton McMillen) for the appellant; Freya Rowe (instructed by Trott & Gentry) for the respondent.





Sentencing



Aggravating features - mandatory life imprisonment - minimum term - mitigation - murder - robbery - young offenders - starting points - culpability

R v (1) Joel Ison Taylor (2) Joshua Declan Thomas: CA (Crim Div) (Lord Justice Maurice Kay, Mr Justice Penry-Davey, Mr Justice McCombe): 4 April 2007
The appellants (J and T) appealed against mandatory life imprisonment minimum terms of 22 years and 18 years respectively, following their convictions for robbery and murder.



J and T robbed the 17-year-old victim (V) of his mobile telephone, a small amount of cash and a cash card. During the robbery, they attacked V by punching, kicking and stamping on him. Once V was unconscious or incapable of independent movement, J and T dragged him to a beach where they proceeded to strip him naked and continued to beat him, leaving the sole marks of their trainers across his body. Finally, whilst V was still alive, J and T dragged him out to sea and drowned him in an attempt to make his death appear as an accident.



J had been 17-and-a-half years old and T had been 15-and-a-half years old at the time they committed the offences. In calculating the minimum terms J and T should serve, the judge referred to various aggravating features, namely that the murder was committed in furtherance of a robbery, that there had been gross acts of violence and an attempt to dispose of V's body. J was only six months short of his 18th birthday and exposure to the 30-year starting point identified in schedule 21 of the Criminal Justice Act 2003. The judge concluded that there was no distinction between J and T's levels of participation but the difference in minimum terms reflected J's greater age, maturity and relevant antecedent history.



J submitted that insufficient account was taken of his age when determining the minimum term to be served. T submitted that insufficient account was taken of his age, lack of maturity due to his low IQ, his lack of previous convictions and the fact that he suffered from attention deficit hyperactivity disorder that resulted in his being easily led when not on medication.



Held, there was a significant difference between the statutory starting points relating to adults and that of young offenders for a murder of the instant type under schedule 21. Where an offender was below 18 years of age, the starting point was 12 years' detention, whereas the starting point for an adult offender was 30 years' imprisonment. However, the issue of starting points in that situation could not be approached mechanistically, R v Peters (Benjamin) [2005] EWCA Crim 605, [2005] 2 Cr App R (S) 101 considered. Where there were two offenders of equal culpability, but aged six months apart, and one fell across the adult threshold and the other did not, starting points of 12 and 30 years would be significantly divergent and neither just or rational.



Therefore, the court had to consider whether the sentences imposed on J and T had been wrong in principle or manifestly excessive. V's murder was of the utmost gravity and had clearly had a profound effect on his family and the community.



The court was entirely satisfied that the judge had identified the correct aggravating and mitigating features of the offences. J had various previous convictions, including one for unlawful wounding, having stabbed a person in the back. He had only been released from detention four months prior to the attack on V and those responsible for his supervision during his period of detention recorded that his attitude was one of arrogance and a lack of empathy. Further, J's pre-sentence report for the instant offence demonstrated no level of remorse and although his age was a relevant factor, the court did not suggest that a minimum term of 30 years would have been appropriate had he been six months older. However, the court also considered that it would not have been much less than 24 years and, therefore, it could not be said that J's minimum term was manifestly excessive or wrong in principle for an offender of 17-and-a-half years of age.



T caused further difficulty for the court due to his age, strong evidence of immaturity and lack of previous convictions. However, T had been a full participant in an appalling murder and the court considered that the judge had taken sufficient account of the mitigating factors by imposing a four-year differential compared to J's minimum term.



Appeals dismissed.



Elwen Evans QC for Joel Ison Taylor; Paul Thomas QC for Joshua Declan Thomas; Robin Spencer QC for the Crown.





Consecutive sentences - corporation tax - fraudulent trading - sentence length - company purchase schemes - evasion of corporation tax liability

R v Ian Andrew Leaf: CA (Crim Div) (Lord Justice Maurice Kay, Mr Justice Penry-Davey, Judge Paget QC): 4 April 2007
The appellant (L) appealed against a sentence of 12-and-a-half years' imprisonment imposed following his conviction for 13 counts of fraudulent trading.



Prior to the enactment of legislation abolishing the practice, there had been a lawful method of tax avoidance through company purchase schemes. The Crown's case against L was that, instead of adopting the lawful approach to company share schemes, he had set about acquiring a number of companies through which, by fraudulent means, he evaded the liability for corporation tax and thereby extracted large sums of money from those companies for his own benefit. The 13 counts on the indictment related to 13 different companies acquired in this way. The aggregate corporation tax liability of the companies was £55 million and the Crown asserted that L had benefited by approximately £22 million, the whereabouts of which were unknown.



The normal method of prosecution was to charge the offender with defrauding the Revenue; however, at the material time, L was resident in Switzerland where offenders could not be extradited for fiscal offences. Therefore, L was extradited and prosecuted for fraudulent trading pursuant to section 458 of the Companies Act 1985. L submitted that in the light of the available authorities, the sentence imposed was too long. He argued that the sum expressed to have been avoided was not as high as the Revenue asserted, since the companies may have been purchased and operated lawfully by others to avoid the liability to tax.



Held, it was abundantly clear from the sentencing remarks that the judge had approached his task with considerable care and had considered L's offending to have been on a massive scale. On matters of approach and structure of the sentence, the court agreed with the judge's conclusions. Although the instant case was one of large-scale fraud, there were cases where the fraud had been on an even wider scale, R v Gokal (Abbas Kassimali) and R v H [2006] EWCA Crim 2385 considered.



L did not have the mitigation of a guilty plea and there was little to be said in his favour apart from his previous good character. A substantial sentence was inevitable as L's offending was on a large scale and was a persistent and sophisticated fraud. The judge was correct to have concluded consecutive sentences were necessary to reflect the gravity of his offending.



However, it was not appropriate to sentence L on the basis that he had caused a tax loss in excess of £50 million. The 13 companies L had purchased were highly attractive to business people in connection with lawful company purchase schemes, and if L had not purchased the companies, they would undoubtedly have been acquired by others for those lawful purposes. Therefore, a significant amount of the tax liability of those companies would have been lawfully avoided. Nevertheless, L had benefited personally in the sum of £22 million that remained unaccounted for. In the circumstances the appropriate figure was one of ten years' imprisonment.



Appeal allowed.



Tim Owen QC, Graham Brodie for the appellant; Joanna Glynn QC, Julian Christopher for the Crown.





Tax



Beverages - burden of proof - food products - VAT - zero rating - identification of 'smoothies' as food or beverages

Kalron Foods Ltd v Revenue & Customs Commissioners: ChD (Mr Justice Warren): 30 March 2007
The appellant food manufacturer (K) appealed against a decision of the respondent commissioners that its 'smoothies' were beverages and thus were standard rated for VAT for the purposes of group 1 of schedule 8 of the Value Added Tax Act 1994. The product in question was a blended mix of fruit or raw vegetables or both and was served in disposable cups from K's retail outlets. Customers could order a smoothie made from one kind of fruit or vegetable, or from several. It was blended for the customer on the spot using a liquidiser that discarded any inedible parts and left the remaining thick drink for consumption. K had submitted to the tribunal that the product was a soft form of food suited to eating, like cold soup, and that it was, therefore, not a beverage. The commissioners had argued that it was marketed and packaged as a freshly squeezed beverage. The tribunal concluded the product could constitute both food and a beverage for the purposes of VAT rating and that K bore the burden of proving that its classification as a beverage was wrong, but that K had failed to do so.



K submitted that the tribunal had erred in law in failing to provide a definition of a beverage and by simply holding that K had failed to discharge the burden of proof that was purportedly on K to show that the classification was wrong, as that approach was incorrect by virtue of the burden of proof being merely on K to establish the facts on which K sought to rely. K further contended that the tribunal had attached too much importance to the single factor of how the product was consumed and was wrong to dismiss as irrelevant the product's ingredients and nutritional effect, since the meaning of beverage had to be construed in the context of the list of excepted items in group 1 of schedule, which list indicated a policy of excluding from zero rating items that lacked nutritional value.



Held, the tribunal had not erred in respect of the burden of proof. On the evidence before it, the tribunal had not been satisfied that the product was a beverage, as K had not demonstrated that the decision on classification was wrong. A taxpayer who appealed against a VAT decision took on himself the burden of proving that it was wrong, Tynewydd Labour Working Men's Club and Institute v Customs and Excise Commissioners [1979] STC 570 and Brady (Inspector of Taxes) v Group Lotus Car Companies Plc [1987] 2 All ER 674 applied.



It was not fair to criticise the tribunal for failing to consider the definition of a beverage, since it clearly noted the definition provided in the relevant VAT notice, which was in turn derived from the leading case law authority.



The tribunal had decided the instant products could be either food or beverages and that the position was finely balanced. It had not erred as submitted, since it had reached its conclusion only after weighing up all the factors, including submissions, before deciding in favour of the commissioners on the basis that K had failed to discharge the burden of proof. The tribunal did not say the product's ingredients and nutritional effects were irrelevant; it said they were not the defining factor.



In any event, that aspect of the case took on less significance in the light of the instant court's rejection of any notion that the policy of placing products on the list of excepted items correlated to a policy of withholding the zero-rating classification from junk food. The word 'beverage' did not have a special meaning under the Act that differed from its meaning as a matter of ordinary language, and the seven-point test for defining a beverage proposed by K at the instant hearing was just the sort of over-elaboration that the Court of Appeal had cautioned against, Customs & Excise Commissioners v Ferrero UK Ltd [1997] STC 881 applied. Furthermore, K had not put that seven-point test to the tribunal. If a tribunal was not invited to make particular findings on the evidence put before it, a party might have difficulties in persuading an appellate court to interfere with the decision of a tribunal that was justifiable on the facts that it did find.



Appeal dismissed.

Michael Thomas (instructed by Freeth Cartwright) for the appellant; James Puzey (instructed by Revenue & Customs solicitor) for the respondent.