England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		24th October 2001

1. MR JUSTICE DAVIS: On 24th March 2000 in the Crown Court at Southwark, the appellant, Kamalesh Soneji, pleaded guilty to a count, which was count 1 on the indictment, of conspiracy to convert property and remove it from the jurisdiction knowing or having reasonable grounds to suspect that it represented the proceeds of criminal conduct. Three other counts were ordered to be left on file on the usual terms.
2. On 3rd April 2000, the appellant Bullen, following legal argument before the judge and before the jury were sworn, pleaded guilty to the like count 1. Three other counts were ordered to lie on the file on the usual terms with regard to him.
3. On 25th May 2000, the appellant Everson, after a trial lasting some six weeks, was convicted on count 1. He was acquitted on two other counts and another count again was ordered to lie on the file on the usual terms.
4. In each case the conspiracy was alleged to have taken place between September 1997 and July 1999.
5. On 18th August 2000, the appellants were sentenced as follows: Soneji, to four-and-a-half years' imprisonment; Bullen, to 6 years' imprisonment; and Everson to 7 years' imprisonment. Two other co-accused were discharged, no evidence being offered against them.
6. The appellants now each appeal against sentence, leave having been granted by the Full Court on a renewed application. The appellant Everson had previously appealed against conviction but his appeal against conviction was dismissed on 27th March 2001. In addition, we are told that confiscation proceedings are extant and they are due, we are told, to be heard on 28th January 2002. There is, we are told today, a substantial dispute as to the amount of the benefits received by the various appellants.
7. The essential facts are as follows. A money laundering scheme, described by the judge as "a massive money laundering scheme", centring on a Bureau de Change in Victoria called Link FX ran from around September 1997 to around July 1999. Used sterling notes were exchanged for foreign currency of higher denominations, bank drafts or electronic transfer. The money laundered through the office was over £15 million and all represented the proceeds of crime. There were at least 150 relevant transactions, so far as this matter is concerned, and some of the amounts were very large.
8. The mastermind behind this scheme was Raju Soneji, the brother of the appellant, Kamalesh Soneji. He operated a company in Gibraltar and issued most of the instructions to Link FX. His brother, Kamalesh Soneji, was in effect the runner, who physically made most of the deposits and liaised with those in the United Kingdom associated with the generation of what may be called 'dirty money'.
9. Observation was kept on Kamalesh Soneji. He was seen changing money that appeared to come from Everson and from Bullen. On various dates between November 1998 and July 1999, he was seen either receiving packages from Bullen or Everson which were later exchanged at the Bureau de Change or giving packages to Bullen or Everson after he had visited the Bureau de Change. Bullen and Everson, it may be recorded, were not the only customers of the money laundering scheme.
10. On some occasions transfers were made otherwise than in cash. There were, for example, transfers to the Gibraltar company controlled by Raju Soneji. There were transfers in respect of the purchase of gold, and there were also dealings with a firm of stockbrokers based in Malta with whom Everson was connected.
11. The scale of the operation may be illustrated by the fact that, in April 1999 a conversation was recorded occurring between a woman called Stavropolou, an associate of Bullen, and Bullen himself, this conversation taking place at the Heathrow Hilton Hotel, in which Bullen was heard counting money and heard to refer to laundering over £1 million a week; although it is right to say that the judge thought that may have been an exaggeration.
12. It appears that throughout there were numerous telephone calls between the Soneji brothers, between Kamalesh Soneji and Bullen, between Bullen and Everson and from around January 1999, it would appear, Kamalesh Soneji and Everson.
13. In April 1999, Bullen and his cleaner were stopped as they were about to board a flight for Athens. The equivalent of nearly £169,000 in Swiss francs and Deutchmarks were found in their hand luggage.
14. All the appellants were arrested on 3rd July 1999. At Kamalesh Soneji's house were found invoices from note counting machines in the name of his brother's Gibraltar company. An identical machine was found at Everson's house. At Bullen's house there was found a note with calculations relating to cigarette smuggling. Everson, himself, although a bankrupt, had large amounts of cash, much of it found in his Jeep, and he often made purchases in cash. Contract notes from a Maltese firm of stockbrokers were found for purchases in the name of an associate of Everson called Buttigeig. In Everson's Jeep it appears there was found a note relating to shipment of what was said to be training suits. When that shipment was intercepted it was found to contain £8.67 million worth of cigarettes.
15. The appellants were involved in the scheme to differing extents but the judge accepted that none of them was involved as principal: rather, their involvement was of a lower order.
16. As the judge mentioned in his sentencing remarks, Kamalesh Soneji in effect acted as a courier for his brother: although he had something of a central role. In due course he became aware that his actions were wrong and were criminal. But he continued to act, through misguided loyalty to his brother, who was orchestrating the scheme. He was dealt with by the judge as a man of good character, and full credit was given for a plea of guilty at the first opportunity. His general anxiety and that for his family was noted. The judge had regard to reports, including a psychological report that was before him, and various other matters that were before the judge. His personal profits from the operation were relatively modest. In effect, as the judge saw it, he was simply used by his brother.
17. So far as Bullen and Everson are concerned, they were not, as the judge found, the only customers of the money laundering scheme and the judge acknowledged that a launderer should be dealt with in a marginally less severe way than the principal offender. The judge nevertheless found that Bullen was deeply involved in the regular laundering of proceeds of cigarette smuggling. He was probably involved in laundering up to £2 million as the judge found. He was a regular customer of Raju Soneji. He pleaded guilty after various submissions had been made and wanted to see the outcome of those submissions; and the judge considered that he should be dealt with as having pleaded guilty at the first opportunity. Bullen has a significant record, in this context, he having been convicted, in November 1984, for fraudulent evasion of duty and being sentenced on that occasion to 2 years' imprisonment. In December 1991 he was sentenced in respect of a drug smuggling conspiracy and received a sentence of 10 years' imprisonment.
18. Everson, who was convicted after a long trial, was, as the judge found, deeply involved with his Maltese colleague, who was involved in cigarette smuggling and investing the proceeds. Everson's role was to cloak the operations with respectability. £1 million was transferred to Malta by shares in the name of his Maltese colleague. Altogether Everson was involved in the laundering of money probably close to the figure of £2 million, as the judge considered. The judge took into account the good character of Everson and also had regard to the health problems of his partner; and indeed, in that regard, further letters have been put before us today as to the ill-health of Everson's partner.
19. In the case of all three appellants the judge considered that the money laundering with which they were concerned all related to underlying cigarette smuggling operations and not, for example, to the proceeds of drugs or robberies.
20. On behalf of the appellant, Soneji, it has been submitted that a sentence of four-and-a-half years was excessive. Attention has been drawn to his early plea of guilty, to his good character and to the various reports, including psychological reports, and other matters. It was stressed that he acted as courier for his brother out of misplaced loyalty to, and perhaps a feeling of domination by, his brother and indeed for relatively little profit to himself.
21. On behalf of the appellant Bullen, while his bad record in this context was acknowledged, emphasis was placed on the fact that he was only one of a number of customers of the laundering operation. Emphasis was also placed on his early plea of guilty, for which it was stressed that the judge had purported to give full credit. It was said, moreover, on behalf of Bullen that the sentence imposed on him was disproportionate, particularly with regard to the appellant Soneji, who was described as being centrally involved.
22. On behalf of the appellant Everson, it was submitted that his role was as a customer and that did not warrant a 7 year term of imprisonment. His previous good character was emphasised, as was the ill-health of his partner. It was said, here too, that a sentence of 7 years was disproportionate in all the circumstances, having regard to the sentences imposed on the other two.
23. All counsel appearing on behalf of the appellants, submitted, in particular, that the sentences were excessive, bearing in mind that the maximum sentence for what may be called 'the primary offence' of evasion of duty by cigarette smuggling is 7 years by virtue of section 170 of the Customs and Excise Management Act 1979. They further all submitted that the judge had failed to have regard to the amount of duty evaded in the underlying smuggling transactions but, rather, that the judge had concentrated, wrongly they said, on the totality of the sums actually laundered.
24. No figures were before the judge as to the amount of duty estimated to have been evaded. We have heard counsel for the Crown today say that it simply is impossible to say. Counsel for the Crown drew attention to what he said was the fact that, in the case of Everson, three containers of cigarettes could have been linked to him, and counsel for the Crown also drew attention to the involvement of Bullen in cigarette smuggling associated matters and to his boast of £1 million per week being involved. It has, however, been pointed out, on behalf of the appellants, that it is impossible to say just what the jury considered was involved.
25. Counsel referred to the decision of this Court in R v Dosanjh [1999] 1 Cr App R(S) 107, BAILII: [1998] EWCA Crim 1450, where it was stated that the amount of duty evaded is an important factor in determining sentence. It is, however, also to be recorded that the Court went on in that case to emphasise that that was not the only factor to be taken into account. In Dosanjh, as is well-known, guidelines, which were stressed to be guidelines and not more than that and dependent on the circumstances of each particular case, were laid out. For example, in evasions involving sums between £100,000 and £500,000, on a plea of guilty, it was suggested that a sentence of 2 to 3 years' imprisonment might be appropriate, and up to 4 years in the event of a trial; and in the case of sums involving £500,000, 4 years might be appropriate on a plea of guilty and up to 7 years after a trial.
26. In Dosanjh the Court also said this, at page 376D:

"In exceptional cases, where very many millions of pounds in duty are evaded, consecutive sentences may be appropriate; alternatively, it may be appropriate to charge conspiracy to cheat, which is capable of attracting higher sentences than those already indicated."

27. We wish to draw attention, in particular, to that last comment. In our view, it is appropriate that the Crown should be alert, in an appropriate case, to including a charge of conspiracy to cheat, where the facts justify such a course, in order to ensure that the full and appropriate sentencing options are open to the Court in the event of a verdict of guilty.
28. We have also been referred by counsel to R v Flaherty & McManus [2000] 1 Cr App R(S), BAILII: [1999] EWCA Crim 1776, where it was, among other things, stated that sentence should not be fixed solely by reference to the amount of money involved; and likewise have been referred to cases such as R v Greenwood (1995) Cr App R(S) 614 and R v Simpson [1998] 2 Cr App R(S) 114, to the effect that those who are involved as couriers or launderers may expect to receive a somewhat lesser sentence than those involved as principals. Indeed, that was a principle that the judge himself expressly applied.
29. We do not consider to be impressive, in the circumstances of this case, the argument of counsel that the effective maximum available here in the case of a principal was that of 7 years and that should, as it were, operate to govern the appropriate sentence available in the case of these appellants. We say that because here the charge was that of conspiracy. It was a conspiracy which was alleged to have lasted for a considerable period of time. Moreover, the conspiracy was in the context of money laundering and did not relate to just one particular incident of evasion of duty.
30. More significantly, however, there is the question of the amounts of duty evaded which, as is clear, simply cannot now be established. It seems to us, in the circumstances of this case, that almost certainly (as counsel before us all agreed) the amount of duty evaded never will be established; and it is appropriate in the circumstances to have regard to the totality of the sums involved and which were as noted by the judge.
31. Nevertheless, having regard to that matter, and indeed to all the other aspects of mitigation advanced before us by counsel, we do consider that the sentences imposed in each case by the judge were too high. We consider, in all the circumstances, that the appropriate sentence in the case of Bullen is 5 years. In the case of Everson, we consider that the appropriate sentence is 6 years. In the case of Soneji, his involvement was more prolonged and, in some respects, he was a more central figure, albeit dominated by his brother, but we do have regard to the rather special factors relating to him, and it is noteworthy that the judge thought that a significant discount as compared to the others was appropriate in his case. Having regard to that, in particular, we consider that his sentence too should be reduced, to one of three-and-a-half years. Accordingly, in the case of Bullen, we quash the sentence imposed and substitute a sentence of 5 years' imprisonment; in the case of Everson, we quash the sentence imposed and substitute one of 6 years' imprisonment, and in the case of Soneji, we quash the sentence imposed and substitute one of three-and-a-half years' imprisonment. To that extent, these appeals are allowed.
(Short Adjournment)

MR HENRY: I am sorry to trouble my Lords still further. I do this with all due deference but it is simply to inform my Lords that if we may have liberty, within the time prescribed, to put forward a certified question. I would wish to seek the opinion of leading counsel in this case, and I mention--

THE VICE PRESIDENT: On a matter of sentence, Mr Henry? Their Lordships' House are not wildly interested in matters of sentence.

MR HENRY: My Lord is quite right. I recognise this. It is most unusual but it is simply to do with the 7 year point my Lords.

THE VICE PRESIDENT: Have you got a question there you want us to certify?

MR HENRY: There is a question, if I may read it out:

"Whether that 'offence' mentioned in section 3(3) of the Criminal Law Act 1977, refers to (a) the statutory maximum prescribed by section 93C(4) of the Criminal Justice Act 1988 (ie 14 years); or (b) the statutory maximum prescribed by section 170(b) of the Customs and Excise Management Act 1979 (ie 7 years) where the appellant is convicted of a conspiracy to convert and remove property from the jurisdiction of the proceeds of criminal conduct and the criminal conduct is cigarette smuggling." (Pause).

THE VICE PRESIDENT: Mr Henry, we decline to certify that question.

MR HENRY: I am sorry to trouble your Lordships.

THE VICE PRESIDENT: Not at all. You were admirably brief on this occasion.