England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 September 2018

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MR JUSTICE HOLGATE: On 20 April 2018 in the Crown Court at Cardiff before Her Honour Judge Tracey Lloyd-Clarke, the appellant pleaded guilty to a conspiracy to pervert the course of justice, contrary to section 1(1) of the Criminal Law Act 1977 (count 1 on the indictment). There was no basis of plea. On 4 July the judge sentenced the appellant to 10 months' imprisonment. She appeals against sentence with the leave of the single judge.

In summary the particulars of count 1 were that Nozumul Ali, Fatiha Begum, Essac Ali and the appellant between 31 January 2016 and 1 April 2017 conspired to give false information to the police in respect of proceedings under the Proceeds of Crime Act 2002 ("POCA 2002") about the ownership of an Alfa Romeo car FJ13 UXG with intent to pervert the course of justice. Nozumul Ali and Ms Begum were also charged with a second conspiracy to pervert the course of justice by giving false information to the police in respect of POCA 2002 proceedings about transactions in bank accounts controlled by Begum.

The appellant has been in a relationship with Essac Ali. He is the father of her two children now aged just over five years and 10 months respectively. Nozumul Ali is the brother of Essac and Fatiha Begum is one of their sisters.

Essac Ali and Nozumul Ali had previously been convicted of offences of supplying both heroin and cocaine. They had served terms of imprisonment and had been the subject of confiscation orders. For example, in August 2009 Nozumul Ali had been sentenced to 7 years 8 months' imprisonment for conspiracy to supply heroin and cocaine. In March 2013 the appellant's partner Essac had Been sentenced to imprisonment for 6 years 6 months for possession of heroin and cocaine with intent to supply.

On 10 February 2016 a search warrant was executed at two addresses in Cardiff which resulted in the arrests of Nozumul Ali, Fatiha Begum and Essac Ali. Nozumul Ali was remanded into custody to await trial. On 3 May 2016 Nozumul Ali and Fatiha Begum pleaded guilty to a conspiracy to supply class A drugs, crack cocaine and heroin. The prosecution did not proceed against their brother Essac. In October 2016, Nozumul Ali was sentenced to 8 years' imprisonment and Ms Begum to a suspended sentence order for a term of 2 years. Confiscation proceedings under POCA 2002 against these two offenders were begun.

On 13 June 2016 a restraint order under POCA 2002 (made on 9 June) had been served on Nozumul Ali. At that time, he owned the Alfa Romeo referred to in count 1 of the indictment. He had purchased it on 6 August 2015. It was registered in his name and was insured in his sole name between 2 November 2015 and 2 November 2016. No other drivers were listed on the policy. That policy continued after the purported sale of the car in April 2016 and whilst Nozumul Ali was on remand in HMP Cardiff.

On 22 August 2016 the Alfa Romeo car belonging to Nozumul Ali was stopped by police officers. He was still in custody. The appellant was the driver of the vehicle. She told the officer that she had bought the vehicle a number of days earlier.

On 5 September 2016 the police visited the appellant at her home address. She provided a witness statement in which she said that she had bought the vehicle in Cardiff from a female via Gumtree, paying her £4,000 in cash at a meeting. She also said that she did not know Nozumul Ali, despite the fact that the appellant was his brother's partner and had been present at one of the addresses at which the search warrant had been executed. The police recovered from the appellant a V5 document for the car which purported to bear the signature of Nozumul Ali and the date 3 August 2016, well after his arrest and remand into custody.

On 22 September 2016, Nozumul Ali provided a section 18 statement in the confiscation proceedings in which he said that the Alfa Romeo had been sold by his sister but without giving any date for the sale.

On 26 September 2016 the appellant was interviewed by the police under caution because of the conflicting accounts that had been provided during the course of the investigation. She maintained her version of events, stating that although she had been at the family home on the morning of the execution of the warrant she did not know Nozumul Ali.

On 25 January 2017 Nozumul Ali was arrested whilst in prison and interviewed. He denied arranging or being engaged in trying to hide the vehicle from the POCA proceedings. He said that his other sister, Menara had arranged the sale in April 2016. He had not signed the V5 document and the signature was not his. He said he had only met the appellant in prison after being remanded on 10 February 2016 while she was visiting his brother.

The police later obtained recordings of telephone calls made between Nozumul Ali, his brother Essac and Ms Begum, whilst Nozumul Ali was in custody, covering the period from 25 January 2017 to 10 April. All the recordings were in Sylheti dialect and had to be translated. During these conversations Nozumul Ali gave instructions to his brother to pass on to the appellant, so that she could give a story about the sale of the car to lead the authorities to conclude that it belonged to someone else and therefore would fall outside the POCA proceedings. For example, she was told to say that the car had been sold before 9 June 2016, the day when the application for the restraining order had been made. Essac Ali confirmed with his brother that he had told the appellant what to say. Nozumul Ali emphasised the need to say that neither he nor the appellant knew each other.

The recordings also revealed Nozumul Ali speaking to his sister, Ms Begum, telling her what to say about monies that had passed through her account so that the sources would appear to have been legitimate. This was the subject of count 2. On 26 March 2017, shortly after Nozumul Ali had served a statement in the POCA proceedings, Fatiha Begum asked him what she should say about money passing through her account. He told her what to say and 10 days later she served her own response under the POCA proceedings reflecting that conversation.

In November 2017 all four defendants were arrested and interviewed under caution. The appellant said she had given her explanation in her earlier statement and she had not been involved in any conspiracy. Thereafter she made no comment.

At the plea and trial preparation hearing on 4 January 2018 the indictment contained only one count, which later became count 1. All defendants pleaded not guilty and the matter was set down for trial. A fresh indictment was then preferred adding count 2. On 2 February 2018 Nozumul Ali and Ms Begum pleaded not guilty to count 2. The trial was set for 21 May. On 13 April the appellant indicated she wished to change her plea to guilty. She was the first to do so. She accepted that she knew that the object of the conspiracy was to avoid the car falling within the scope of the POCA proceedings. At a hearing on 20 April all defendants except Ms Begum pleaded guilty to count 1 and both Nozumul Ali and Ms Begum pleaded guilty to count 2. The court ordered that count 1 should lie on the file in relation to Ms Begum.

The appellant was born on 16 April 1991. Her antecedents were limited to a caution in 2015 for criminal damage. In the pre-sentence report the appellant said that she had lied to the police because her partner had told her to do so and she had been naive. She acknowledged that it had been wrong to lie to the police, she regretted having done so and was remorseful. However, the appellant had wanted to use the Alfa Romeo herself because her own car had previously been set on fire. The appellant had left employment to care for her two children but hoped to return to work in the future. She was assessed as posing a low risk of re-offending and a low risk of causing serious harm either to herself or to others.

In her sentencing remarks, the judge specifically had regard to the definitive guidelines on the imposition of community and custodial sentences and on reduction in sentence for a guilty plea. She said that the guilty pleas had been at a relatively late stage and that the defendant was entitled to a credit of 15 per cent, although in practice she applied a slightly larger reduction.

The judge noted that there were no specific sentencing guidelines on perverting the course of justice> She referred to R v Tunney [2007] 1 CrAppR (S) 91 as setting out the principles to be applied. In respect of the appellant and Ms Begum the judge also had regard to the principles laid down in R v Petherick [2013] 1 WLR 1102, because there they were both mothers of young children.

The judge said that it was clear from the evidence and not in dispute that Nozumul Ali had been the driving force behind the offences and the other three defendants had willingly and knowingly agreed to his plans. Although this has not been the most serious offence of its type, there had been significant persistence, statements were made to the police and in the course of the confiscation proceedings. Because the investigation by the police had uncovered the conspiracy and led to the present prosecution, the confiscation proceedings had been delayed and for that reason the object of the conspiracy had failed. But if it had been successful the defendants would potentially have removed thousands of pounds from the ambit of the POCA proceedings. From the authorities it was quite clear that immediate custodial sentences were appropriate in such cases unless there were exceptional circumstances and in the case of these defendants there were none.

The judge said that if he had been convicted following a trial Nozumul Ali would have received concurrent sentences on counts 1 and 2 of 2½ years' imprisonment. Allowing for the guilty plea and the totality principle the sentence imposed was 2 years 1 month. Essac Ali would have received a sentence of 18 months' imprisonment following a trial on count 1. This was reduced to 15 months to reflect the guilty plea.

For Ms Begum's breach of the suspended sentence order the custodial term was activated. Had she not been the mother of young children, she would have been ordered to serve 12 months of that sentence but, applying Petherick, this was reduced to 8 months. On count 2, if Begum had been convicted after a trial she would have been sentenced to 18 months' imprisonment but, applying Petherick, this was reduced to 12 months. After allowing for her guilty plea, the sentence on count 2 was 10 months. Applying the principles in the guideline on totality, this sentence would run consecutively to the activated term making the overall sentence one of 18 months' imprisonment.

In the appellant's case, had she been convicted on count 1 after a trial, the judge said the sentence would have been one of 18 months' imprisonment. Applying Petherick, that term should be reduced to 12 months and then further reduced to 10 months to take account of the guilty plea. The judge stated that the offence was so serious that an immediate custodial sentence had to be imposed.

In his grounds of appeal, Mr Salmann submits firstly that the mitigating features of the appellant's case should have led the judge to impose a suspended sentence order. Rightly he does not contend that the custodial threshold was not passed or that the imposition of some form of custodial sentence was avoidable.

It is necessary first to assess how serious the appellant's offending was. In Tunney this court stated that regard should be had in particular to three factors:

(1) The seriousness of the substantive offence to which the perverting of the course of justice relates;

(2) The degree of persistence in the offender's conduct;

(3) The effect of that conduct on the course of justice itself.

Here, there was no substantive offence in the normal sense because the course of justice with which the appellant interfered were the proceedings under POCA. But the 2002 Act gives effect to an important public interest in seeing that criminals are deprived of the benefits of their criminal conduct. Perverting the course of such proceedings is likely to be a serious matter, especially where, as the judge noted here, the object is to evade the confiscation of property worth many thousands of pounds. Furthermore, the POCA proceedings in this case arose out of criminal conduct of a serious nature, namely dealing in class A drugs. The appellant must have known of Nozumul's arrest in February 2016 and guilty plea in May 2016 for this offending. She then became a party to the conspiracy to prevent the Alfa Romeo from being dealt with in the POCA proceedings which would have prevented her from continuing to enjoy the benefit of the car. The fact that this was a conspiracy was of course an additional aggravating feature in itself.

The conspiracy was of persistent nature. It must have begun at some point after Nozumul Ali's arrest in February 2016 and certainly once the restraint order had been served in June that year. On 22 August 2016, the police stopped the car when the appellant was driving it. She then told them a series of lies about the car and how she came to be in possession of it. The conspiracy then persisted into the following year, as was evidenced by the telephone conversations involving the appellant's partner and his brother while the latter was in prison.

Ultimately, the conspiracy failed but only because of the efforts which the police had to undertake to uncover the truth.

Turning to the Definitive Guideline on the Imposition of Community and Custodial Sentences there are some factors lend support to the custodial sentence being suspended. The appellant does not present a significant risk or danger to the public. She has not previously failed to comply with court orders and immediate custody would result in harm to her two young children. In relation to the last point, we are told by counsel that the appellant's parents and a friend are taking care of the children. But these matters needed to be weighed against the seriousness of the offence. In our judgment, the judge cannot be criticised for taking the view that the appellant's offence was so serious that "appropriate punishment" could only be achieved by imposing an immediate custodial sentence. We agree that the weight to be attached to this factor was overriding.

Secondly, Mr Salmann submits that the length of the immediate custodial sentence was wrong in principle because the judge treated both Ms Begum and the appellant essentially in the same way and failed to make any allowance for the fact that the appellant was effectively of good character as compared with the former and had been the first to indicate a willingness to plead guilty, a significant factor where a conspiracy is alleged. Alternatively, he submits that the sentence was manifestly excessive taking into account credit for her guilty plea, remorse, good character, delay in bringing the prosecution, the appellant's age, the role she played in the conspiracy and her role as the mother and sole carer of two young children.

We are not impressed by the argument that the judge failed adequately to reflect the guilty plea, remorse, age and Petherick. Indeed, in the light of paragraph 24 of Petherick it might be said that the judge was somewhat generous in the one-third credit she allowed for this serious offence, both in the case of Begum and the appellant. Furthermore, there was no delay which could have had any material effect on the sentence.

On the other hand, we do not consider that the judge made any allowance for the fact that Begum had recently taken part in a conspiracy to supply class A drugs and whilst on bail for that offence committed the conspiracy under count 2 to which she pleaded guilty. Furthermore, in relation to count 1 the judge took the same starting point of 18 months for both Essac Ali and the appellant before allowing for Petherick (in her case) and guilty pleas, although Ali already had a substantial criminal record including dealing in class A drugs. In these circumstances, we do not consider that the appellant's sentence can be supported. For these reasons we quash the sentence of 10 months' imprisonment and substitute one of six months' imprisonment. To that extent only this appeal is allowed.

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