R v Yanko (Wayne John)

Date

13 June 1995

Legislation

Trade Marks Act 1938 ss.58A(1), (4)

Keywords

criminal offences; sentencing; conspiracy offences; trade mark offences; medicinial products; danger to public; custodial threshold

Counsel

M Levett for Yanko

Solicitors

Unknown

Judge

Roch LJ; Curtis J; Judge Denison Q.C. sitting as a judge of the Court of Appeal

Court

Court of Appeal (Criminal Division)

Reported

[1996] 1 Cr App R (S) 217

Summary

On January 6, 1995 at Snaresbrook Crown Court Yanko changed his plea to guilty and, on February 3, was sentenced in this way: on count 2 of the indictment, conspiracy to manufacture or assemble medicinal products, 12 months' imprisonment; on counts 3, 4 and 5, fraudulent use of a trademark contrary to section 58A(1) and (4) of the Trade Marks Act 1938, three-and-a-half years' imprisonment on each count concurrent and concurrent with count 2; on count 9, possession of a class A drug, two months' imprisonment concurrent; and on count 10, possession of a class B drug, one month's imprisonment concurrent. In addition he pleaded guilty to an offence of escape charged in a separate indictment and was sentenced to one month's imprisonment consecutive. The total sentence was 43 months' imprisonment. Further counts in the indictment charging conspiracy to obtain property by deception, count 1, and fraudulent use of a trademark, counts 6, 7 and 8, were left on the file on the usual terms.

Shortly before the police arrested the appellant they observed his conspirator Adil collecting a box from the appellant's flat and loading it into his car. Adil was arrested on the road and the box was found to contain, among other products, bags of imitation "Sustanon" ampoules and boxes of imitation "Anapolon" tablets.

A search of the Dartford premises revealed a pill press machine, pill stampsmarked "Ciba" and "Syntex", a blister packaging machine loaded with tablets and foil marked "Methandrostenolone", heat wrap, sealant machines, an industrial cooler and batch number stamps (for marking expiry dates on goods). There were packaging products, cylinders containing testosterone, ampoules, phials and tablets ready boxed. The pill press and the blister packaging machine had originally been purchased by a Mr Edgar. Yanko, however, had received instruction as to their use before those machines were delivered. Packaging film had been supplied to Edgar between August and October 1993 in substantial quantity. It was Yanko who had placed the orders for laboratory equipment and chemicals between April 1993 and December 1993.

The products recovered were analysed. Some contained testosterone and some other similar medicinal products which should only have been available on prescription. Others contained no active ingredient at all, which was the reason for the first count alleging conspiracy to obtain property by deception which was allowed to remain on the file on the usual terms. The product which did contain an active ingredient did not contain the precise amount of drug which was represented as being present either on the product or on its packaging.

When interviewed Yanko said that he had been making placebos at Takeley but they were packaged as steroids. He had first met Edgar in June 1993. He had bought the pill press, blister packaging machine and industrial cooler from him and had paid Edgar about £24,000. He had kept the equipment at Takeley, paying Edgar rent until they had fallen out when he had moved the equipment to Dartford. It would seem that the appellant fell out with Edgar because he believed that Edgar was manufacturing the drug Ecstasy. The appellant agreed in interview that the steroids and pills stored at the Dartford premises were his. They were manufactured there but packaged at Enfield. He described himself to the police as an "entrepreneur" and said that Adil worked for him. He also told the police that he had been able to buy himself a £40,000 Mercedes car and a car for the use of Adil.

Tablets were produced at the premises of Edgar in Takeley from about June 1993 using a pill press and a blister packaging machine. From October the steroids were produced and assembled by the appellant at premises which he had rented in Dartford. The products and the packaging used were stamped or printed with various marks including "Syntex" and "Anapolon", trademarks belonging to Syntex Pharmaceuticals Ltd or Ciba, a trademark belonging to Ciba Geigy Ltd.

On November 19, 1993 the police arrested Edgar. A search of his premises at Takeley revealed packets of tablets, sheet printed labels, punch boxes containing metal dyes marked with trademarks including the trademark "Syntex" and a book entitled "Anabolic Reference Guide".

On June 25, 1993 the police had observed Yanko unloading a cylinder from the boot of his car at the Takeley premises. On October 25 he was seen to remove packaging foil and machinery from the premises at Takeley and to transport those items to premises at Dartford which he had rented a short while before. It was there at those premises in Dartford that the Crown alleged that testosterone was mixed with supermarket cooking oil and then transported to the business premises of Leveridge in Enfield in five litre containers.

Leveridge arranged the supply of ampoules and had them screen printed by another firm on the same site. They were filled with the liquid by machine, the machine being capable of filling in excess of 6,500 ampoules a day. Yanko provided £4,700 to purchase the machines; he did that in February 1993. The ampoules were collected by Yanko or by Adil from Mr Leveridge's business and later sold.

Neither the Dartford nor the Enfield premises employed methods to keep the products sterile and, as the judge observed in his sentencing remarks, these medicinal products were assembled in appallingly bad conditions which were potentially dangerous. The cooking oil used was not stabilised.

In sentencing him the judge, His Honour Judge Haworth, observed that this was a substantial and professional business worth hundreds of thousands of pounds; forged packaging for the bogus products was skilful--it was near perfect. He gave Yanko credit for his frankness and for pleading guilty. The judge said that Yanko had changed the character of the steroids which had come into his possession. The judge accepted that Yanko had not been involved for the whole period but he was the main mover. It might be right that there was someone else involved who played a greater role but Yanko was high up the pyramid and only a custodial sentence was justified.

Yanko appealed to the Court of Appeal on the basis that three-and-a-half years for the trademark offences was manifestly excessive. He submits that three-and-a-half years represents a sentence of between four-and-a-half and fiveyears' imprisonment if the case had been contested and that that was too high a starting point for the judge to take. Further he argued that he had not been given sufficient credit for his plea of guilty, nor did it give him sufficient credit for his previous good character and frankness with the police in interview.

Decision

The Court of Appeal noted that this case presented a difficult sentencing exercise for the judge, the case falling as it did in an area where there is little or no guidance to be derived from sentences in comparable cases. For the total of three-and-a-half years to be a proper sentence in these circumstances it requires the appropriate sentence following conviction after a trial to be of the order of four-and-a-half to five years. The Court of Appeal did not agree that four-and-a-half to five years would have been excessive had this appellant been convicted of these offences after a trial and concluded that the judge had chosen the correct starting point for these very serious offences.

However, there was an exceptional factor which was not and could not be taken into account by the sentencing judge, namely the fate that befell Mr Edgar and the Crown Prosecution Service's decision not to offer any evidence against him in respect of these matters because in their view the likely sentence following a fight for Edgar would not have exceeded two-and-a-half to two-and-three-quarter years' imprisonment. For this reason alone the appeal was allowed. The sentence of three-and-a-half years' imprisonment on counts 3, 4 and 5 was quashed and substitute sentences of 33 months imposed. The remaining sentences stayed as they were, making a total of 34 months.