England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23 February 2017

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Non-Counsel Application (Approved)
1. LORD JUSTICE NICOL: This is a renewed application for permission to appeal against sentence following refusal by the single judge. On 13 March 2017 in the crown court at Lewes the applicant pleaded guilty to two offences. Count 1 conspiracy to defraud contrary to common law; count 2, conspiracy to launder criminal property contrary to section 1 of the Criminal Justice Act 1977.
2. On 19 May 2017 he was sentenced by his Honour Judge Kemp to 27 months on count 1 and to 11 months, consecutive, on count 2, making a total of 3 years and 2 months' imprisonment.
3. Among his co-accused were Naneshbhai Patel, who pleaded guilty to counts 1 and 2 and was sentenced to a total of 5 years and 8 months' imprisonment. It is not necessary for us to detail the four other co-accused who were also charged at the same time.
4. The facts of the offence in brief were these: between 24 July 2013 and 2 February 2015 the applicant and Naneshbhai Patel conspired to defraud HMRC by providing false income tax self assessment forms that misled and deceived the HMRC into transferring sums of money as tax rebates. The conspirators effected the fraud by remotely using access to the self assessment portal through their phones and computers. The conspirators submitted bogus amendments and applications in the names of taxpayers, who were unaware that claims had been made on their behalf. Income tax rebates were then paid in the name of those taxpayers and diverted by the applicant and his co-conspirator.
5. Turning to count 2, the conspiracy to launder criminal proceeds, the facts of that offence were that the money from 21 different submissions for five of the nine hijacked taxpayers could be traced to the applicant. Transfer claims culminating with accounts held by applicant or his wife received over £35,000 which appeared to have been retained or subsequently spent. On five further occasions accounts in the name of the applicant were used to act as buffer accounts for funds which were then paid onwards into accounts held by Naneshbhai Patel. On those occasions the full amount received from the previous link in the chain was not remitted onwards but resulted in the applicant retaining a further £3,400 of the proceeds of the fraud.
6. The applicant was arrested. In interview he stated that he had known Naneshbhai Patel for a long time and that he, the applicant, and Mr Patel regularly lent each other money and that was the explanation as to why money went to and from their prospective bank accounts.
7. The applicant pleaded on the basis that was dated 8 March 2017. The prosecution did not accept that basis so far as count 2 was concerned. A Newton hearing was scheduled but on the day of the hearing the applicant submitted an amended basis of plea which was acceptable. The judge remarked that the applicant had pleaded guilty on the first day of trial, namely 13 March 2017. The judge said that that would be reflected with appropriate credit for those pleas of guilty. He noted the sequence of events concerning the basis of plea to which we have just referred. The judge remarked that the conspiracy to defraud in count 1 was sophisticated, well planned and well executed and had persisted over a seven-month period, resulting in nearly £180,000 being paid out. That was money that had been paid to the Revenue by honest and diligent taxpayers. It was thus a fraud on the public purse. The applicant had also tried to launder money obtained from the initial fraud.
8. In relation to count one the applicant had stated he did not submit any false or bogus claims or hijack any of the individual accounts. The applicant did, however, provide an address which had been used for the furtherance of the fraud. In relation to count 2 the applicant had filed an addendum to his basis of plea in which he acknowledged that over £56,000 of the fraudulently obtained money had been transferred into his bank account of which he had retained some £27,000. The applicant did not accept, however, that he had physically benefited to the extent of either of those sums, but that he had received monies from 21 of the fraudulent submissions for five of the nine hijacked taxpayers. The address which the applicant's wife had by virtue of her employment in the hospital had been used for the purpose of supporting a number of the false claims. The applicant's plea had come at the latest possible stage of the day of trial. Credit would therefore be very limited. The judge assessed the credit as 10 per cent. The applicant was 34 years old. He was a man of hitherto good character, a husband and a father of two young children. The judge had read letters from the applicant and his wife and they made moving reading. The applicant stated in those letters that he was not a criminal but in reality he was and he had now lost his good character. The judge said that the sentencing guidelines had been agreed by all and that the applicant was of medium culpability for his role in both counts 1 and 2. This was on the basis of value, therefore, a category 5B offending, giving the court a sentencing range of between, as the judge said, 18 months and 3 years. In fact, the judge erred in favour of the applicant in that respect. The range for 5B offending, conspiracy to defraud is up to 4 years, not 3 years. The judge said that for the money laundering offence the range was between 6 months and 18 months' imprisonment. Again, the judge erred in favour of the applicant. For the money-laundering offence within category 5B the range goes up to 3 years. The judge said he took the view that the conspiracy to launder the proceeds of the main fraud was an additional operation necessary to conceal those proceeds and therefore the sentences should be consecutive but he would be alive to the totality principle and would keep the sentence as low as he could. He passed the sentences to which we have referred.
9. The applicant seeks to argue two grounds of appeal. The first is that the sentence of 2 years and 3 months' imprisonment on count 1 was excessive, given the minor role played by the applicant and his good character. Second, the applicant argues that the totality of the sentence across both counts was excessive and the sentences on counts 1 and 2 should have been concurrent.
10. In refusing permission the single judge said count 1 involved a serious and sophisticated conspiracy to defraud. The sentence on that count was within the guidelines and did reflect the fact that this defendant played a lesser role than N Patel. He was, nonetheless, a co-conspirator. The judge explained how the offending in count 2, the money laundering of proceeds, was additional to that in count 1 so as to warrant a consecutive sentence. Totality did not require him to make the sentence on count 2 concurrent. He did have regard to totality in limiting the sentence on count 2. The overall sentence could have been lower had the admission of guilt been made at earlier stage.
11. We have reviewed all of the papers in the case but it is sufficient for us to say we entirely agree with the decision of the single judge. Accordingly, this renewed application for permission to appeal against sentence is refused.

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