England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		18th May 2001

1. LORD JUSTICE MANTELL: In January 1995 and January 1997 a number of armed robberies were carried out by a gang operating in the Northwest of England. In the main, the targets were armed guard and Securicor vans. Some of the offences took place in the north and some in the south. In the event, only two of the planned robberies were successful, but those two robberies produced in total about £1.2 million.
2. The principals involved in those robberies, ultimately to be charged with conspiracy to rob, were Hill, Brown, Kennedy, Dorrian, Fletcher and Scroggie. In due course, all six were apprehended and brought before the courts, although not all at the same time. Hill and Brown received sentences of 20 years' imprisonment for their part in the conspiracy. Kennedy was originally sentenced to 17 years, but on appeal that sentence was reduced to 14. Dorrian was sentenced 16 years' imprisonment, Fletcher to 5 years and Scroggie to 12.
3. This case is not concerned with the roles of those individuals, but rather with the role of Jason Peter Metcalf, who was a gambling man and who had been recruited or who had volunteered, it matters not, to assist the robbers, and notably Hill, Brown and Kennedy, with the laundering of the proceeds of those two successful robberies.
4. We can describe what he did very shortly. Receiving large sums of money from those three main robbers, he placed bets (on the whole at short odds although sometimes he employed the technique of using accumulator-type bets) at a number of bookmakers' premises, losing in the process considerable sums of money, but on occasion receiving winnings which were paid either to the robbers or to their nominees, almost invariably as we understand the facts of this case in the form of cheques drawn on the bookmakers' accounts.
5. He was eventually arrested and charged with three counts of assisting others to obtain the benefits of criminal conduct. He stood his trial at Manchester Crown Court in August 1999, when he was convicted by the jury and sentenced by HHJ Fawcus to three concurrent terms of five years' imprisonment.
6. At a later hearing, on 8th September 2000, the same judge made a confiscation order against him in the sum of £22,250. That was after proceedings in which the judge assessed the benefit to Metcalf of his participation in the criminal offence at not less than £185,000.
7. Metcalfe now renews his application for leave to appeal against the sentence of five years' imprisonment. He also appeals against the confiscation order, as it appears to us, with the leave of the single judge. We take the two matters in that order.
8. It is submitted by Mr Cowan, who appears on behalf of Metcalfe on this occasion as we believe he did at his trial, that five years was too long for the role which Metcalfe played, having regard to the sums of money involved. Mr Cowan has assisted the court by bringing our attention to the case of R v Rance Attorney General's Reference Number 70 of 1999 [2000] 2 Cr App R (S) 28. That was a handling case where computers valued at approximately £250,000 had passed through the hands of the handler. An unduly lenient sentence was imposed, as found by this court, and in the event the sentence was increased. As the court remarked, for what the offender had done a sentence of not less than four years would have been appropriate.
9. We do not find that case to be of any assistance to the applicant in this case. What this applicant did by way of laundering the proceeds of armed robberies, whether or not he knew precisely the source of those monies, was at least as serious as that which had been done by the offender in the case of Rance, and certainly merited a sentence of at least four years.
10. In the event, the sentence of five years which the learned judge imposed was not one which this court is prepared to say was even arguably manifestly excessive. Accordingly, we refuse leave to appeal against the sentence of imprisonment.
11. Mr Cowan has a point with regard to the confiscation order. He says that it was inappropriate for the judge to assess the benefit at the figure he did, having regard to the fact that the monies which were available to the appellant to dispose of as he would wish would be much less than that sum and would correspond to the amount of any fee or award or commission which had been given to him by the robbers, that figure not having been capable of assessment.
12. In that, we hold he is wrong. There is very clear authority, which he acknowledges, that in relation to parallel proceedings in relation to drug trafficking the benefit is to be assessed by reference to that which passes into the possession of the defendant, albeit that it is not retained by him. The cases which have been brought to the attention of this court are R v Simpson and Others [1998] 2 Cr App R (S) 2 Cr App R (S) 111, R v Simons [1994] 98 CAR 100, R v Banks [1997] 2 Cr App R (S) 110 and R v Smith [1989] Cr App R (S) 290.
13. We can see no reason why the approach of the court should be any different in relation to section 71 of the Criminal Justice Act 1988 as amended. It was perfectly right and proper for the learned judge to approach the question of assessment of benefit in the way in which he did and thereafter to proceed to consider the appropriate figure which represented the appellant's realisable assets, namely £23,000 being his interest in a house, and to make a confiscation order in that sum.
14. We can detect no fault or error in the reasoning of the learned judge in reaching the conclusion he did. Accordingly the appeal also fails.

LORD JUSTICE MANTELL: There is nothing else, is there? You do at least get remunerated for your attendance today. You get it in relation to the appeal.

MR COWAN: I have legal aid --

LORD JUSTICE MANTELL: It is a consolation.