Abbott, R v

THE RECORDER OF SWANSEA: On 16th January 2008 in the Crown Court at Newcastle, this appellant pleaded guilty and in the following month, on 11th February, he was sentenced by His Honour Judge Lowden as follows: on the first count on the indictment, an offence of concealing criminal property, he was sentenced to two-and-a-half years' imprisonment, and an order was also made for forfeiture of a vehicle which the police had seized; on count 2, for possession of a Class A controlled drug, cocaine, he was sentenced to a concurrent term of 6 months' imprisonment; and in respect of count 4, for possession of Class C controlled drug, cannabis, no separate penalty was imposed. Therefore the total sentence was one of two-and-a-half years' imprisonment. In respect of other counts, alleging simple possession of controlled drugs, no evidence was offered and not guilty verdicts were entered. As to the drugs which were seized in respect of counts 2 and 4, orders for forfeiture and destruction were made. There was postponement of a confiscation hearing, the learned sentencing judge setting a timetable for the provision of statements.

William Abbott now appeals against sentence by leave of the Single Judge, leave being granted on the second ground of appeal sought to be pursued. Today, before this Court, Miss Ellis, on behalf of the appellant, has sought to renew the application for leave to advance the first ground and that leave was given.

The background is as follows. On 17th March 2007 the appellant was first captured on a speed camera driving an Astra van near Newcastle-upon-Tyne. The appellant lived in Bromley, Kent. Eleven days later he was stopped by traffic officers driving a different Astra van, southbound, near Gateshead. A small bag containing just under a gram of cocaine was found in the pocket of a jacket on the front passenger seat of the vehicle (count 2 referred to that finding). The vehicle was searched and concealed behind plastic panelling in the cargo area of it was found a total of £143,725 in cash in bags and boxes (count 1).

The appellant was arrested and searched upon his arrival at the police station, and in his pockets were found a small bag containing approximately half a gram of cannabis (count 4 reflected that) and a further sum of £1570 in cash.

The appellant was interviewed in March and September and accepted that both the cannabis and cocaine were his, and were for his personal use. He made no comment about the money found behind the panelling in the van or about the van itself, beyond saying it was not his vehicle. He said that he had won the £1570 in a betting shop.

On pleading guilty on 16th January, a written basis of plea was submitted on the appellant's behalf and subject to one qualification, which was of no consequence in the context of this appeal the prosecution took no issue with it. It was as follows:

In passing sentence the learned judge observed that although the appellant had no previous convictions for serious drug related offences, he did have previous convictions for serious offences of dishonesty albeit some time ago. He was a married man with children and he did not seem to have a lot of money. He had pleaded guilty to concealing nearly £150,000 worth of criminal property and possession of small quantities of controlled drugs for his own use. It might well be, the learned judge remarked, that the appellant had played a relatively small part in what was substantial criminal activity and that he was a courier on this one occasion, but it was one occasion which had been carefully set up, said the learned judge, because he had been sent to the north east on a previous visit simply to meet up with his contact. He was transporting the money on behalf of drugs suppliers, said the learned judge, and it was "as plain as a pikestaff" that he must have known this was drugs money. The learned judge found that he did know, adding: "I simply do not begin to understand how this might be somehow gambling related." Only a custodial sentence could be justified.

As far as the appellant is concerned, he was 43 years of age at the time of sentence. He had recorded against him convictions for offences of dishonesty, between 1976 and 1990, dealt with variously including by short custodial sentences. He was dealt with for serious offences of a completely different nature in 1983 and then in March 1992, he received a sentence of 4 years' imprisonment for a series of offences of handling stolen goods and deception. His last conviction was in June 2004, which had been for abstraction of electricity and criminal damage, in respect of which he was dealt with by way of a conditional discharge.

There was a pre-sentence report in his case recommending a suspended sentence order, with requirements of supervision and drug rehabilitation. It was said that there was a medium risk of him re-offending, though it was noted that there was in his history a reduced pattern of offending. It was further said that the appellant recognised his actions were wrong and accepted full responsibility for them and had expressed his remorse. He informed the probation officer that he had been pressurised by associates of his drug suppliers to whom he was in considerable debt, so that he should collect this money, otherwise harm would come to his family.

He was married with four children, two of whom required considerable care, a man reliant on benefit and unfit for work. The family was affected by debt, worsened by the appellant's problems with gambling and drugs. There was also an assessment report which said that he was suitable for a drug rehabilitation requirement and that he appeared motivated to address his addiction. There were also before the learned judge two character references, from persons who knew the appellant and for whom in the past he had worked.

The grounds of appeal are, firstly, the appellant was sentenced on an incorrect basis, that is to say not upon his basis of plea, and secondly, that in all the circumstances the sentence was manifestly excessive. In support of the grounds of appeal counsel has referred, in her written advice on appeal of 15th February 2008, to a number of authorities and has made specific reference today to R v Gray [2001] 1 Cr App R(S) 28, R v Cuenca-Ruiz & Others [2001] EWCA Crim 2418 and the recent case of R v Dao [2008] EWCA Crim 984. In relation to that last authority it has been submitted by Miss Ellis that that was clearly a more serious case as far as the appellant was concerned because he was directly involved in the cultivation of the drug. The sum involved overall was much larger and there was clear financial gain to the appellant there.

First of all, turning to the question of sentencing on the incorrect basis: this is a point of some significance, in the judgment of this court, i.e. whether this appellant knew that he was carrying cash representing the proceeds of drug trafficking. In circumstances where the prosecution takes no issue as to a defendant's basis of plea or some part of it, it is the understanding of this court on clear authority that it is still open to the judge to take a different view; if the basis is manifestly implausible or plainly false, plainly untenable, then the judge may reject it without a Newton hearing. On the other hand, where the basis is not in those realms but the judge is disinclined to accept the defence account, notwithstanding the prosecution stance, it would appear that the defendant should have the opportunity of dealing with the matter by being given notice.

Here, Miss Ellis has submitted that it was by no means clear that these proceeds necessarily represented the proceeds of drug trafficking, particularly since it was said the collection was at behest of associates of the appellant's drug creditors rather than those drug creditors themselves. In those circumstances, this court is prepared to proceed on the basis that it cannot surely be said that this appellant knew that the money represented the proceeds of drug trafficking.

The furthest that the evidence must therefore go is that this appellant undertook this criminal activity at the behest of others, and that he knew that the money represented the proceeds of some form of criminal conduct. He fell to be sentenced on that basis.

We are grateful to counsel for referring to a number of authorities indicative of the level of sentencing here. The case of Monfries [2004] 2 Cr App R(S) 3 is one of those that have been referred to in the advice of counsel. Monfries is helpful in that it contains reference to relevant considerations: firstly, the nature of circumstances and extent of the appellant's laundering activity; secondly, that there is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence but where it is known, some regard will be had to it; thirdly, regard should be had to the extent of the launder's knowledge of antecedent offence; and fourthly, the amount laundered is also a relevant factor. The authorities referred to demonstrate that the circumstances of such offending clearly do vary widely. Here, there was one transaction, albeit that it involved a sum of £143,725 in cash. On the other hand, as has been indicated, we cannot be sure that this defendant knew specifically the source of this cash and therefore that must be interpreted in his favour. We also bear in mind that he carried out this exercise to repay a debt rather than for positive financial gain or other reward. We have to bear in mind, however, that the learned judge was also sentencing in respect of two offences of simple possession of controlled drugs including one for drugs in Class A, for which a concurrent sentence in the event was imposed. There was this appellant's personal mitigation and an early guilty plea, albeit that since the offence in question was triable either way, it was not at the very first opportunity but we accept the submission made that it should attract discount of the order of 30 per cent. In those circumstances, the decision of this court is that a sentence overall of 30 months' imprisonment, following early guilty pleas, would seem to indicate a notional sentence, after a trial, of something in excess of three-and-a-half years. This court considers in all the circumstances, in the light of the authorities that the sentence was too long, particularly in view of our upholding the first ground which was argued in relation to the basis of plea. In those circumstances the sentence does attract the interference of this court and, in all the circumstances, the sentence on count 1 will be reduced to one of 2 years' imprisonment. The concurrent sentence in respect of possession of cocaine will stand. To that extent the appeal is allowed.