Davies, R. v

MR JUSTICE BEATSON: On 26th April 2004 at the Crown Court at Bristol, the appellant now aged 42 who had pleaded guilty on rearraignment at the same court on 26th November 2003 was sentenced by His Honour Judge Darwall-Smith to two years' imprisonment on each of nine counts of theft, the sentences to be concurrent. 72 offences of theft were taken into consideration. A confiscation order in the sum of £156,000 was imposed pursuant to section 73 of the Criminal Justice Act 1988; £35,000 out of this was to be paid in compensation to the complainant. A sentence of two years' imprisonment consecutive to the two years was imposed in default of payment of the confiscation order. The appellant was also ordered to pay £10,000 towards the prosecution costs. He appeals against the sentence of two years' imprisonment in respect of the thefts, the total amount of the confiscation order and the costs order with leave of the single judge.

The appellant was a longstanding employee of a coach hire business, Coombes Travel, set up by the complainant Mr Coombes. He was also a director of BLC Enterprises, a business involved in vehicle purchase and repairs also owned by the complainant.

From 1988 the appellant, as Coombes Travel's Traffic Manager, had the responsibility of quoting for potential coach hire trips, arranging the drivers and billing the jobs. One of the firm's customers was the Birmingham Hospital Saturday Fund. The firm provided coaches to take and return tourists from Birmingham to the Weston-super-Mare area where they stayed for a week. Excursions were arranged on some of the days. The appellant would send the bill for these to the Hospital Saturday Fund. On Fridays however there was an optional rather than included excursion. The tourists paid a fixed fee directly to the coach driver who would hand the money over to the appellant. The appellant should have handed the money to the firm's administration section, so that it would be paid into company's accounts and invoices could be created.

Mr Coombes and his wife became concerned about the lack of takings from the Friday trips. Mrs Coombes instructed the regular Friday driver to tell her how many people were on each trip. She found the appropriate sum of cash and made a note of the serial numbers on the notes. She then swapped her cash with the numbers recorded with the driver and the driver would then hand the marked notes to the appellant. The administrator of the account then made a note of the serial numbers of notes handed to her. None of the marked notes turned up.

The appellant was arrested in September 2002 and when interviewed agreed that he had collected the money from the Friday trips and used it for personal and business matters. He did not consider this to be unjustified. He thought he had been doing it for a couple of years. He said he had been given a free hand to do as he wished. The total amount stolen was just over £35,400. The appellant was of previous good character. A pre-sentence report recommended a community punishment order if a non-custodial disposal was considered appropriate. The report stated there was a low risk of his reoffending and his attitude to the offence was one of contrition.

The sentencing judge stated that the appellant had stolen some £35,000 from his employer, it was clear that he had been living beyond his means on his £24,000 a year salary for a long time. Apart from expensive holidays and a nearly new expensive car he had been an obsessive gambler on the stock market. The judge stated that the appellant's criminality extended for much longer than he had said. He took account of the appellant's good character and the fact that although he did not plead guilty at the earliest opportunity he had saved the public purse by his pleas. There was no alternative to a custodial sentence and after referring to the fact that this court has laid down guidelines as to sentences for trusted employees who steal from their employer, he took into account the 72 TIC offences and imposed the sentence.

Before the judge it was agreed by the parties that for the purposes of the application for a confiscation order he had benefited in the sum of £280,700. It had been submitted that the sentencing judge should not make the statutory assumptions at all, or alternatively that they should be reduced. Because it was accepted that in respect of a number of share transactions there was some element of claiming the same sums twice, it was agreed that the benefit figure would be reduced to £260,000. It was initially agreed that the appellant's assets totalled £175,000 on the basis that he had a half share in the family home, 21 Pern Road, and the judge made a confiscation order of £175,000. He also made the costs order that is also the subject of this appeal. As a result of further submissions by the parties later that day, the amount of the confiscation order was reduced to £156,000.

The grounds of appeal settled by Mr Hollier who appeared before us are that the sentence of two years' imprisonment was manifestly excessive and failed to give the appellant sufficient credit for his guilty plea, the total sum of the confiscation order was wrong because it did not include the costs of the sale of the house and, third, the judge erred in ordering the appellant to pay prosecution costs of £10,000 a sum that through lack of means he was unable to pay within a reasonable period.

Before us Mr Hollier stated, in relation to the appeal against the two year sentence of imprisonment, that he recognised given the sums of money, a sentence of two years for theft and breach of trust by an employee is within the current accepted tariff. He submitted that in essence his was a plea for mercy and referred us to the situation that the appellant will find himself in when he leaves prison and to the fact that he has taken swift steps to start to sell property and pay on the confiscation order.

We have concluded that in view of the totality of the criminal activity for which the appellant was sentenced, two years' imprisonment on a late plea is not manifestly excessive.

We turn to the appeals concerning the confiscation and costs orders. Since leave was granted a further application has been made. Leave is sought to appeal the confiscation order on the ground that £156,000 was a sum produced on an inaccurate over-valuation of the family home. At the confiscation hearing the basis of calculation of the appellant's interest in the home was a gross value of £372,000. Mr Hollier submits, on the basis of a valuation since that date by Mr Dunn of C J Hole, a local firm of estate agents, that the figure should be £265,000. Mr Dunn's affidavit states that would be the figure for a quick sale on the date the affidavit was sworn, 1st December 2004. He states that he had advised in August that the house should be marketed at £275,000. The effect of applying the lower figure is to reduce the appellant's share of the beneficial interest in the house and thus Mr Hollier submits that the confiscation order should be reduced.

Mr Farmer, who appears before us on behalf of the Crown, agrees that the valuation figure given to the learned judge was at that time an over-valuation. In view of that agreement it is not necessary for us to go into the details of the valuation at that time and the fact that it was not challenged. Mr Hollier frankly said that that was due to an oversight on his part. The valuation before the judge was based on an estate agent's valuation of the house in the year 2000 to which the Nationwide Building Society House Price Calculator had been applied first in February 2004, at the time of the initial prosecutor's statement, and then just before the hearing in April. After the price calculator was applied the resulting figure was reduced. The prosecution statement said this was so as to err on the side of fairness. The February valuation produced a valuation of £275,000 and the April valuation one of £372,000.

It is clear from the decision of this court in Lemmon (1991) 13 Cr.App.R (S) 66 that it is important for the court considering making a confiscation order to have an up-to-date professional valuation, and in that case a valuation by the defendant in that case contained in a statement to his bank 15 months earlier when applying for a loan, which was contested at the hearing but nevertheless applied, was said to be inadequate.

We shall return to the effect of the conclusion that the valuation given to the judge was an over-valuation and that he was thus, through no fault of his own, misled and unable to fix the amount of the confiscation order on a true valuation of the property on that date. We, however, observe that what is relevant is the value of property at the date the matter comes before the court hearing the confiscation proceedings. For that reason the figure of £265,000 in December 2004 contained in Mr Dunn's affidavit is not one which is relevant in respect of confiscation proceedings in April. To do otherwise would be to allow those subject to a confiscation order on a falling market to bring before this court changes in valuation as they occur. The correct way of dealing with falls in the property market affecting any of the property upon which the confiscation order was made is for an application to be made for a variation or a certificate of inadequacy. We have concluded that in the circumstances before us and on the evidence before us the correct valuation in April 2004 is £275,000.

We turn to the omission to deduct from the value of the house the costs of the sale of the house. This matter was also not drawn to the attention of the learned judge by Mr Hollier but there is evidence before us as to these costs. Mr Dunn's affidavit states there would be a one and a quarter percent commission on the sale price in respect of the estate agents fees and Mr Graham Lloyd gives evidence as to the solicitor's charges. It is accepted by Mr Farmer that these costs should have been deducted and the figures produced by Mr Hollier on a schedule are also agreed. Accordingly, the estate agents' costs are agreed at £3,312.50, the VAT on that sum is £579.68; the solicitor's costs are £525, the VAT on that sum is £91.87; and there is a disbursement of £8. Again, the fact that these costs were not deducted is through no fault of the learned judge. His attention was not drawn to the fact that there would be these costs. Mr Farmer was quite right to accept that these costs are properly deductable. That this is so is seen from the decision of this court in Kramer (1992) 13 Cr.App.R (S) 390 and the terms of the order in Lemmon's case (1991) 13 Cr.App.R (S) 66.

Applying those figures to the figure of £156,000 for the confiscation order, produces a figure of £75,241 for the appellant's fifty percent share of the family home. We propose to reduce the amount of the confiscation order to reflect this.

Mr Hollier also submitted that disposals of vehicles and shares since the confiscation order was made have not realised the sums assumed in the table prepared at the time of the confiscation order. He invited us to take account of the sums realised in fixing the amount of the confiscation order. To do this is to use this court to deal with subsequent adjustments which are properly the subject of an application to the Magistrates Court and, if necessary, for a certificate of inadequacy. We accordingly decline to do so.

Returning to the figures used for the determination of the confiscation order in April, we substitute a figure of £75,241 for the beneficial interest in the family home, but leave the remainder of the figures used in the calculation in respect of shares, motor vehicles and shares sold during the currency of the proceedings as they were at that time. The consequence of the agreed arithmetic is that the total is just about £105,600. There has been a practice of rounding figures and Mr Farmer has indicated that he is content for the confiscation order to be for £105,500.

Accordingly, we reduce the amount of the confiscation order from the amount ordered to be paid by the learned judge to £105,500. This takes into account the gross sale price on its value in April and the sale costs that have to be deducted from the value of the house. We also set aside the costs order. It was properly agreed by Mr Farmer in view of R v Nottingham JJ, ex parte Fohman (1987) 84 Cr.App.R 316 and R v Hapes (1989) 11 Cr.App.R (S) 38, that the judge erred in making this order because, through lack of means the appellant would be unable to pay within a reasonable period.

Mr Hollier also submitted that if the amount of the confiscation is reduced consideration should properly be given to the period to be served in default. By section 139 of the Powers of Criminal Courts (Sentencing) Act the maximum sentence in default of a confiscation order exceeding £100,000 but not exceeding £250,000 is three years. The learned judge imposed a sentence of two years in default of the payment of the confiscation order he made. Mr Hollier submits that on a lower figure consideration should be given to this period. He submits that the aim of the period is not to punish by to induce a person to pay. It does not, however, follow from this that a reduction in the amount of the order leaving a sum within the permissible band for a given sentence in default should lead to a reduction in the length of sentence in default. We do not consider that there should be a reduction in the period in default in this case.

To the extent indicated in this judgment this appeal is allowed.