England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		6th October 2015

LORD JUSTICE TREACY: I shall ask Mr Justice King to give the judgment of the court.

MR JUSTICE KING:

1. On 24^th July 2015, following a trial in the Crown Court at Isleworth before His Honour Judge Matthews and a jury, the appellant was convicted on the single count faced by him on the indictment, namely, Possessing Criminal Property, contrary to section 329 of the Proceeds of Crime Act 2002 (count 2). His co-accused, Joseph Azouri, was convicted after trial of fraud (count 1). The judge imposed sentence on the same day. He refused an application made on the appellant's behalf for an adjournment for the preparation of a pre-sentence report. He indicated that in his view such a report would not assist. The appellant was sentenced to 15 months' imprisonment. His co-accused was sentenced to three and a half years' imprisonment.
2. The appellant now appeals against his sentence with the leave of the single judge.
3. There is a pre-appeal report before this court.
4. The account upon which the appellant was convicted concerned the appellant (i) allowing his Halifax bank account to be used during the weeks of May 2013 for the receipt of monies by way of a number of payments totalling £47,890, which were part of monies totalling some £77,400 obtained by his co-accused through the fraud on count 1; and then (ii) enabling his co-accused (if not himself) to utilise the money by assisting him in the rapid withdrawal of those monies over some three weeks. Most of the monies had been dissipated on high gambling at London casinos. There was evidence that the co-accused had access to the appellant's account on-line. When he was arrested, the co-accused was apparently logged on with his computer into that account. However, when it came to withdrawal by debit card at the casinos, the appellant had been present to effect the necessary withdrawals himself. On the evidence, the appellant had used part of the monies for his own gambling, but to a much lesser degree, compared with his co-accused.
5. The fraud had been committed on a lady, Miss El-Sayed, and her brother, Mukhtar Hussein. The co-accused (Azouri) ran a second-hand car sales business called Black Horse Cars, which operated through a limited company, Black Horse Company Limited. The appellant became the sole director of that company, although his case was that he had little or nothing to do with the business. Cars would be bought at auction and then resold at a car showroom. The £77,000 referred to were monies emanating from Miss El-Sayed, who had been induced to make the payments on the strength of the false representations made by Azouri to her brother, that they were to be an investment in the company business of buying and selling cars for profit in which she would share. It appears that Miss El-Sayed had taken out a second mortgage on her home in order to fund part of what she had been assured would be a profitable investment. With no profit and no information confirming the proper use of the monies forthcoming form Azouri, Mr Hussein contacted the police. Azouri and the appellant were subsequently arrested – Azouri in October 2013 and the appellant in January 2014.
6. Both the appellant and Azouri are Lebanese by birth. They had known each other for some 20 years. Police inquiries revealed that they were both members of the Gala group of casinos. Casino records showed that during May 2013 the appellant gambled a sum of £12,400. This sum was known as a "drop", although this included money won and gambled. His credit account at the casino showed withdrawals or purchase of chips to the value of £49,000, although his "drop" indicated that he had not gambled with most of that money. The appellant later told the police in interview that he attended a casino with Azouri and would withdraw money for him at the casino. In that police interview the appellant also claimed that the Halifax bank account into which the monies had been paid was controlled by Azouri and that he (the appellant) knew nothing of any fraud. He had allowed Azouri to use the account at his request because he (Azouri) had a poor credit record and could not open an account himself. The appellant had become a director of the company at the co-accused's request, but had received no money and had done nothing in respect of the business.
7. The appellant is 45 years of age and a naturalised British citizen. He had come to the United Kingdom in 1993 as a refugee from the civil war in Lebanon and had been granted indefinite leave to remain. He was a man of previous good character. He worked as a waiter in a London restaurant. We accept that there was unchallenged evidence from his employer confirming his employment and speaking of his positive qualities. We have today received a further character reference on his behalf speaking of those positive qualities.
8. There was, as already indicated, no pre-sentence report before the court. The judge rejected the submission of Miss Lee that, having regard to the appellant's previous good character and "limited role", the court should adjourn for the preparation of such a report so that the court could consider an alternative to immediate custody.
9. In passing sentence the judge applied the material sentencing guideline for money laundering issued by the Sentencing Council. It is not in dispute that, having regard to the amounts involved (just under £50,000), this offence was properly placed into harm category A. The question was then as to the level of culpability. In his sentencing remarks the judge made clear that the choice was between A (higher culpability) and B (medium culpability). At one stage he observed that he had seen no evidence to suggest that the appellant was either coerced, or intimidated, or indeed exploited by Azouri into allowing the account to be used (a reference to features of lesser culpability). The judge stated that, having heard the submissions of Miss Lee, he was "prepared just to accept" that this fell into B (medium culpability). The starting point for such a categorisation is 18 months' custody with a range of 26 weeks to three years.
10. As to mitigation, the judge acknowledged that the appellant was a man of previous good character, that "the court would have received if time had been available" the references involving his previous good character from members of the Maronite community close to where the appellant lived in London. He sentenced on the basis that the appellant suspected that the money represented proceeds of criminal conduct, as distinct from his having knowledge. Earlier in his sentencing remarks he said that the jury had found at the very least "that you suspected that the monies you withdrew, and which disappeared into the coffers of Grosvenor and Aspinalls, were the proceeds of a deception on an innocent third party". Although benefit was not a necessary ingredient of the offence, the judge acknowledged that this was a feature that he could take into account by way of mitigation. It was impossible to identify with any precision the appellant's benefit, but that on any view that benefit was substantially less than the benefit to the co-accused. The "drop" figure of £12,400 was always subject to the caveat that records of monies "dropped" would include recycled cash. The judge had regard to all of these matters before he arrived at his final sentence of 15 months' imprisonment. He said that he saw no basis for suspending any such sentence.
11. We turn to the Grounds of Appeal. Miss Lee submits that where an offender is a man of good character and the sentencing guidelines indicate a sentence which could be lawfully suspended, it was wrong in principle for the judge to have sentenced the appellant to immediate custody without first obtaining a pre-sentence report. She submits that while it was correct to say that a probation officer would be unlikely to tell the judge anything about the appellant that counsel could not, what counsel could not do was to give a probation officer's opinion on the appellant's suitability for a non-custodial sentence and recommend the requirements to be attached to a community order or a suspended sentence.
12. A further submission, both in writing and orally today, is that having regard to the mitigation available to the appellant, both personal and in relation to the offence, the length of the sentence should have been lower than that imposed and should have been suspended. Miss Lee has referred more than once to the appellant's "limited role".
13. We have considered these submissions which have been advanced cogently and concisely, but we have not been persuaded by them. As regards the complaint as to the lack of a pre-sentence report, the statutory position is that under section 156(3)(a) and (4) of the Criminal Justice Act 2003 the court in the case of a custodial sentence, and so far as material to the present appeal, must obtain and consider a pre-sentence report before forming any opinion as mentioned in section 152(2) and section 153(2) of the Act, except if "in the circumstances of the case the court is of the opinion it is unnecessary to do so". Under section 152(2) the court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that neither a fine nor community sentence can be justified. Under section 153(2), any custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence. It is to be noted that under subsection (6) of section 156, no custodial sentence is invalidated by the failure of a court to obtain and consider such a pre-sentence report.
14. In the circumstances of the appellant's offending and information the judge already had as to the appellant's personal circumstances, we find it difficult to conclude that the judge was wrong to say that a pre-sentence report was unnecessary.
15. In the event, the pre-appeal report which has been obtained, has not led us to differ from the judge below, either as to the judge's assessment of the seriousness of the offence and the crossing of the custody threshold or the appropriateness of the length of the custodial sentence here imposed. The report, in effect, adds little or nothing to any assessment of the appellant's role in the offence. It repeats, in effect, that which had been put before the judge on the appellant's behalf, although it is of note that the author of the report discloses his impression that the appellant may have been more aware of what was going on than he was willing to disclose. The author said this:

"1.5 ... to trust Mr Azouri enough to become a director of his company and to let [him] use his bank account for no stated reward and with no working knowledge of the car business appears somewhat unlikely."

Be that as it may, the report adds little to the appellant's personal circumstances which were already before the court below. It is true that the author of the report assesses the appellant as posing a low risk of serious harm to the public at this time, and assesses the appellant as suitable for an unpaid work requirement, but the author makes clear that this is only if the court were to consider that a community penalty was appropriate.

16. In our judgment the judge was fully entitled to conclude that this was a case of medium culpability. There is, in truth, little evidence of only limited culpability. The judge had presided over the trial and was best placed to assess culpability. He expressly found that there was no evidence of coercion, intimidation or exploitation.
17. Miss Lee makes that point that, but for the conduct of Azouri, the appellant would not be in the position he now is. However, the fact is that, by lending his bank account to the co-accused, the appellant had facilitated the extensive fraud perpetrated upon Miss El-Sayed and Mr Hussein, and, by actively allowing withdrawals, he facilitated the dissipation of those funds fraudulently obtained. He may not have been involved in the fraud itself but, as the judge found, on the jury's verdict he suspected that the monies he was receiving into his account and then withdrawing for the benefit of the co-accused, were the proceeds of criminal conduct.
18. Given the appellant's long-standing friendship with the co-accused and the appellant's involvement with his company, it can be understood why the judge was not prepared to find that the appellant performed only a limited function or had only limited awareness or understanding of the extent of the criminal activity. This was, moreover, not a case on the evidence where it could be said that the appellant was not motivated by any personal gain. His gambling may have been to a lesser extent than that of the co-accused, but on the evidence he was prepared to gamble, in part, with suspected proceeds of crime.
19. In these circumstances we find it impossible to conclude that the sentence ultimately reached by the judge was manifestly excessive or wrong in principle. The judge's starting point was in line with the material sentencing guideline. He had regard to the appellant's previous good character and the other mitigation available to him in reducing the sentence to the level he did. We do not consider his failure to further reduce the sentence to be manifestly excessive. Nor can it be said that this was a sentence which was bound to be suspended. Any decision on suspension is very much an exercise of discretion of a sentencing court with which this court will rarely interfere.
20. In all these circumstances this appeal must be and is dismissed.
_________________________________