R v ANTYPAS

Court of Appeal, Criminal Division

57 Cr App Rep 207

Hearing Date: 16 November 1972

16 November 1972

Index Terms:

Immigration -- Sentence -- Recommendation for Deportation -- Fear of Persecution if Return to Immigrant's Own Country Ordered -- Matter for Minister and not for Court -- Opportunity to be Given to Defence to Make Representations before Recommendation Made.

Held:

Fears expressed by a defendant alien as to the treatment which he may receive if he should be deported are matters proper for consideration by the Minister if a Court should make a recommendation for deportation rather than for investigation by a Court in deciding whether or not such a recommendation should be made. {208} Where a court is considering the making of a recommendation for deportation, it is generally desirable that the defence should be given the opportunity of making submissions to the court on this matter.

Introduction:

Appeal against sentence. The appellant pleaded Guilty at Inner London Quarter Sessions on July 22, 1971, to possession of cannabis resin and was sentenced by his Honour Judge MacLeay to three years' imprisonment and was recommended for deportation.

Counsel:

P. Norris for the appellant. No counsel appeared for the Crown. PANEL: BEFORE LORD JUSTICE MEGAW, LORD JUSTICE ORR AND MR. JUSTICE PHILLIPS

Judgment One:

MEGAW L.J.: On July 22, 1971, this appellant, George Antypas, pleaded Guilty at Inner London Quarter Sessions to possession of cannabis resin. He sentenced to three years' impriosonment, and a recommendation was made for his deportation. It is right to mention, in view of some of the submissions addressed to us by Mr. Norris on his behalf, that there were three persons accused along with the appellant. One man named Williams was sentenced to five years' imprisonment. He was convicted, amongst other things, of conspiracy to supply cannabis resin and offering to supply it. Another man named Jones was sentenced to three years' imprisonment. He was convicted of incitement to supply cannabis resin, conspiracy to procure and possession. Yet another man named Hicks was convicted of conspiracy to procure cannabis resin, and was 57 Cr App Rep 207 sentenced to eighteen months' imprisonment, suspended for three years. The appelland appeals against sentence by leave of the single judge, who granted he extension of time necessary for that purpose. It is clear that the learned single judge in giving leave was concerned with the question of the recommendation for deportation, but, leave having been give, this Court has to consider the whole of the sentence, and not merely one part of it. Mr. Norris has properly made submissions in relation to the period of three years' imprisonment as well as in relation to the recommendation for deportation. {209} The facts of the case, summarily stated, were, that on February 18, 1971, police officers went to an address in Church-way, N.W.1. At about 9.55 p.m. Jones was seen to have been admitted to the premises. He was searched, and a large sum of cash and a quantity of cannabis was found on him. Some time later, a little after 11 o'clock that night, Williams was admitted to the flat. The police went to search his car, which was parked outside. The appellant was sitting in the front passenger seat. He was found to possess money in excess of @ 2,000, but he did not say for what purpose he had the money. It is right however, to mention that the police officer, when he was giving the antecedents of the appellant, in cross-examination agreed that that money, whatever it was for, had nothing to do with the obtaining of cannabis. In the boot of the car the police found over fourteen kilograms of cannabis resin. When the police told Williams and the appellant, who were together, what they had found, Williams said: "That's it then, George," and the appellant said: "Will I be deported?" The appellant was cautioned, and he said: "I've just pcked it up from the airport." At the police station he made a written statement admitting the offence, and saying that he committed it because he was in financial difficulty. The appellant's version of the matter, which the police officer delaing with the antecedents was prepared to accept, was that he had been asked by someone else to go to Heathrow Airport to pick up a package, that he had done so, that that package as the cannabis, and that he had taken part in transporting it to the place where it was found. The appellant is thirity-one years of age. He is a man with no previous convictions of any sort. He was born in Syria, although we are told that his parents both hold Greek passports, and that he himself holds a Greek passport. He was in this country for some time, and then he formed a company which deals in machinery supplied to the Middle East. In mitigation the version which I have mentioned was put forward. It was said that the appellant had intended to improve his business. He met a man who befriended him and lent him {210} money. Being under obligation, when that man asked for a favour, to collect a package from the airport for a fee of @ 75 to @ 100, he had accepted and agreed to do so. But, it was said, he was in no way responsible for its disposal nor did he receive money from the sale. He also, as the police agreed, co-operated with them, though there may have been a little question on that, which relates to the names of one or more persons concerned. The judge in passing sentence stressed that this was a serious offence, and had to be punished with severity. The grounds put forward by Mr. Norris on behalf of the appellant in respect of the length of impirsonment relate, first, to the fact that he had a completely good character previously, that his involvement in this offence was 57 Cr App Rep 207 of a limited nature, and that he was not himself making a profit in the supply other than the commission that he was to receive for the particular job that he did. It was also stressed that he is a well-educated man, that he has got a business in this country which is becoming successful, and it is urged that, having regard to the sentences passed on at least two of the co-accused, in view of their records, the sentence on the appellant is too severe. It is also suggested that the judge may have been influenced, consciously or unconsciously, by an allegation that was made in the plea in mitigation on behalf of the man Hicks, that he, Hicks, had received severe injuries when he was assaulted by persons concerned in drug traffic because he was frank to the police. There is no reason whatever, in the view of this Court, to think that the judge took into account any suggestion that the appellant was in any way concerned with that matter. The principal point of Mr. Norris's appeal relates to the application for deportation. He stresses the difficulty in relation to the appellant's nationality, which has already been mentioned, namely that, having been born in Syria, he holds a Greek passport, and his parents hold Greek passports. Correspondence has been referred to which had taken place with Lebanese diplomatic representatives in London. The reason why the correspondence took place with them was because they look after the affairs of Syria in this country for the time being. In the letter {211} of July 17, 1972, from the Embassy of Lebanon Syrian Interests Division, it is asserted that, if the appellant were returned to Syria, he would be re-tried by a Syrian court. It is also stressed that, if he were sent to Greece on deportation, he will be sent to a country with which, despite his holding a Greek passport, he has no practical connections other than having spent a few days in that country at some time or another. All these matters are which, no doubt, can properly be raised with the Secretary of State, if this recommendation should be upheld. But in the view of this Court, they are not matters which this Court ought to take into account in deciding whether or not the recommendation was proper to have been made. The ultimate decision rests with the Secretary of State. The matter was raised in a rather different context in the case which was decided by this Court (Civil Division) on October 13, 1972, ALI v. IMMIGRATION APPEALS ADJUDICATOR AND OTHERS. That was a case in which there was an application to overrule the order of the Minister as to deportation of a man to Cyprus. It was not a case of a direct appeal against a court's recommendation. But, in the course of giving the judgment, the Master of the Rolls said something which, whether or not it is obiter, this Court would propose to accept and follow. What was said was, as reported in The Times newspaper of October 14, 1972: "The appellant had failed to show that there was another country ready to receive him. The proper procedure was that, if a man had well-founded fear that he would be persecuted if he was sent back to his own country, it was not a point to be taken before the court which recommended him for deportation or the appeal court. It was a point to be taken, as had been done in the present case, by representation to the Minister before he made the deportation order. The Minister should, as he did in the present case, take that into account. The Home Secretary decided that, notwithstanding the representation, the deportation order should made." Mr. Norris, while accepting that there is that authority in the dictum, nevertheless submitted that in all the circumstances here the Court should set aside the recommendation for deportation {212} on the basis that this is the appellant's first offence, that he is a man of completely good character 57 Cr App Rep 207 hithertom that he has been co-operative with the police and that he has this flourishing business in this country. This Court is unable to accept those submissions, and can see no ground for thinking that the recommendation that was made was wrong, though the final decision rests with a different authority. There is one matter which the Court ought to mention before parting with this appeal. It would seem that in the court below the appellant or his legal representatives were not invited to make submissions with regard to the question of the recommendation for deportation. In view of this Court, at any rate normally, if a court is minded to make a recommendation for deportation of an alien, it would be desirable that those representing the alien should be given the opportunity of making any submissions that they may wish to do in that respect. The appeal must be dismissed.

DISPOSITION:

Appeal dismissed.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.