England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 February 2009

1. LORD JUSTICE THOMAS: On 19th May 2006 the appellant pleaded guilty to conspiracy to supply cocaine. He was sentenced to 13 years' imprisonment on 28th February 2007. Confiscation proceedings followed and on 13th June 2008 His Honour Judge Globe QC, the Recorder of Liverpool, determined that the appellant had a criminal lifestyle, that the benefit from his criminal conduct amounted to £622,622 and the term of default was set at five years. He appeals solely on the ground that the default period should not have been set at the maximum.
2. The facts can be stated briefly. The appellant with his co-conspirators was involved in four importations from Switzerland in 2005. He brought in 16 kilograms of cocaine at 40% purity, or 6.4 kilograms at 100% purity. The applicant was responsible for a distribution network in Merseyside once the cocaine had been imported. He made the arrangements in the Netherlands for the purchase and organised the payment to the suppliers.
3. As regards the confiscation and the circumstances in which that order was made, the conclusions the learned judge made can be summarised without the necessity of going into the details. First, no submissions were made that the appellant did not have a criminal lifestyle; it was self-evident that he did and was a serious perpetrator of organised crime. The judge characteristically carried out a careful and meticulous analysis of the appellant's dealings and his accounts and assessed the benefit at £622,662 as we have set out. He held that the recoverable amount was in that sum. He made it very clear in the case of his judgment on the confiscation proceedings that the appellant had failed to put in any affidavit or give any evidence or to cooperate one iota with the exercise being conducted.
4. The judge did not explain why he set the maximum period of default period. The default period under section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 are as follows: For an amount between £100,000 and £250,000 the default term is three years; for an amount between £250,000 and £1 million it is five years and in excess of £1 million it is 10 years.
5. Before turning to the authorities, there is one matter we should deal with. An application was made to the District Judge in the Magistrates Courts to enforce the confiscation order. It appears that some evidence was put before the judge that the defendant was trying to realise assets or obtain the money. That comprised merely, as we understand it, some assurance from his lawyers. It is self-evident and important to note that no leeway whatsoever should be given to anyone subject to a confiscation order unless there is hard evidence in the form of money deposited or properties secured that show that the sums are being realised. A simple assurance from a lawyer is totally worthless and should not be acted on in the absence of hard evidence of the kind we have described. We say that because it appears, although the information before us is not complete, that the District Judge may have extended the time for payment until 20th March. If the account we have given is correct the judge wrongly exercised his discretion to do so and no leeway should have been shown whatsoever to this appellant.
6. We turn therefore to the authorities which have been put before us in relation to the short issue. They are R v Szrajber (1994) 15 Cr App R (S) 821, R v French (1996) 16 Cr App R (S) 841, R v Qema [2006] EWCA Crim 2806, R v Howard [2007] EWCA Crim 1489 and R v Liscott [2007] EWCA Crim 1706. It is clear from those authorities that the court has a discretion up to the maximum period in the band. It would, taking as an example the band we are concerned with, namely the band of between £250,000 and £1 million, at a sentence between the maximum amount and the top of the previous band, namely three years. In fixing the precise length of the sentence, the court has to consider all the circumstances and is not bound to follow an arithmetical approach. In this case, as the sum is within a few thousand of the midway point, that clearly indicates that it is not right to fix the sentence merely in the midway point, namely as four years. The court must have particular regard to the purpose of the imposition of a period of imprisonment in default, that is to say to secure payment of the amount that the court has ordered to be paid. This is because the overriding purpose of the legislation is to ensure that those who benefit from such crimes do not retain those benefits. The power to imprison in default is given to ensuring or obtaining as far as possible the co-operation of the defendant in complying with the order. It is to be make clear to him that he has nothing to gain by non-compliance. It is particularly important to have regard to the judgment of Hobhouse LJ in French to that effect at page 844 of the report. Although a court must take into account intransigence, it seems to us the court must also take into account, in a case where the order is not for the maximum, what that maximum is.
7. The argument before us has been very attractively put on both sides by Mr Cummings for the Crown and Mr Lewis for the appellant. It seems to us applying the principles we have endeavoured to summarise, that this was plainly a case where the judge was entitled to take the view that a major factor was the lack of co-operation in the past which indicated that a severe term in default was needed to bring home to this appellant the need to cooperate in providing his assets to satisfy the amount of the order. However, it seems to us that the judge also had to give effect to the fact that this was not an order for the maximum amount in this band. The judge in our view should therefore have made some allowance for the fact that this was not the maximum amount and should in our judgment have imposed a period in default of four-and-a-half years.
8. We would add one further point. There is some suggestion that the judge should have had regard to the overall totality of the sentence of 13 years imposed for the substantive offence and the period to be imposed in default. That argument was not pursued before us as it was accepted that it was wrong in principle to take into account in fixing the default term the previous sentence. We consider that that concession was rightly made, as the purpose of the sentence of imprisonment was to punish him for his drug dealing; the purpose of the sentence for confiscation was the purpose we have set out, namely to ensure compliance with the order of confiscation. The sentences have completely different purposes and therefore it was right in principle to concede that an argument on totality could not properly be advanced.
9. For those reasons therefore we amend the default term to one of four-and-a-half years, but with regret that the time imposed by Judge Globe has been amended in our judgment there can be no justification for any further extension of the enforcement until this appellant proves that he is realising assets to satisfy the order.