Robey, R v

On 3 May 2017, at the Inner London Crown Court, the appellant was convicted, after a trial, of three offences: fraud, contrary to section 1 of the Fraud Act; acquiring criminal property, contrary to section 329 of the Proceeds of Crime Act and concealing, disguising, converting or transferring criminal property, contrary to section 327 of the same Act. His former wife and co-defendant was convicted of the two money laundering offences.

The appellant was sentenced to 3 years for the fraud with 1 year consecutive for the first of the money laundering offences and 1 year concurrent for the second money laundering offence, making 4 years in total.

He appeals with leave of the single judge on the basis that the sentences for the money laundering offences should both have been ordered to run concurrently and that the total sentence of 4 years is excessive as a result.

Ms Jones QC appears today for the appellant, as she did at trial. We are indebted to her for her clear and detailed advice and grounds prepared for this appeal. We have not found it necessary to call upon her to any great extent as the Crown have advised that they do not seek to oppose this appeal and have asked in advance to be excused from attending today.

The short facts of the case are as as follows. The appellant worked as a senior electrical engineer for the London Borough of Southwark. His primary function was to administer an estate lighting contract which had been awarded to a company called Spokemead Maintenance Ltd (“Spokemead”), to ensure that work on council housing estate lighting and ventilation was done to proper standards. As part of that role the appellant was required to declare any potential conflicts of interest to his employer. Between September 2012 and June 2014 he failed to declare his interest in a company called Robey's E & P Ltd (“Robey’s”), which undertook subcontracting work for Spokemead on a project to improve the heating, ventilation and air conditioning on the London Borough of Southwark housing estates. The appellant's then wife was a Director of Robey's and her son (the appellant's stepson) had taken up an office administration role with Spokemead. The appellant's failure to declare these interests gave rise to the fraud offence.

Between 3 October 2012 and 9 June 2014 Robey's received £318.233.76 gross from the London Borough of Southwark via Spokemead. It was established at trial that the council had not been overcharged and that all of the work done by Robey's had been both necessary and carried out to an acceptable standard. In principle however the London Borough of Southwark would not have agreed to Robey's doing the work had they known of the connection with the appellant because it gave rise to a conflict of interest.

The monies were paid by Spokemead into Robey's bank account in 22 payments. Between them the appellant and his former wife withdrew £154,466.76 from the account, the prosecution case at trial being that these withdrawals were ultimately used for the benefit of the appellant and his wife personally or for the benefit of the company, Robey's, which they jointly owned and operated. The receipt of the gross amount into the company account and the payments out thereafter formed the basis of the two money laundering offences.

In his sentencing remarks the learned judge rightly referred to the fact that the appellant was working as an official in the public sector where the highest standards of probity and honesty are expected. The sum received by the company (£318,000) placed the offence initially within category 2 of the applicable Sentencing Council Guidelines. However, this was a gross amount to the company which had expenses associated with materials and labour for the work which it had done. The judge took that into account and also that the work had been done well and concluded that the appropriate category for the purpose of sentencing was category 3. However, the level of culpability was high given the abuse of trust, the period of time over which the offending was carried out and the sophisticated nature of the offending.

Category 3A in the Sentencing Guideline has a starting point of 3 years with a range of 18 months to 4 years. Balancing the aggravating and mitigating factors the judge came to the conclusion that the least sentence he could pass for the fraud offence was one of 3 years. There is no criticism at all of the way in which he arrived at that sentence. Neither is there any issue taken with the length of the sentences passed for the two money laundering offences. Ms Jones submits that the judge erred only in ordering the sentence for the first of the laundering offences to run consecutively.

In her detailed note prepared for the sentencing hearing, and again before us, Ms Jones contends that the money laundering offences did not add to the culpability of the appellant taking the offences as a whole. She referred us in this connection to case of R v Greaves [2010] EWCA Crim 709 and to the Sentencing Council Guideline on Offences Taken into Consideration and Totality.

As the single judge pointed out when giving leave, the task for this court is to decide whether the total sentence of 4 years is manifestly excessive. We are satisfied that it is. In a commendably fair and careful approach to sentence for the primary fraud offence the judge concluded that the correct sentence was one of 3 years not 4. He was of course also sentencing the appellant's wife and co-defendant at trial on the money laundering offences alone and this may have been the reason at the time for ordering the 12 months to run consecutively to the fraud offence. However, in this respect only we believe that the judge fell into error in the approach he took, as the money laundering offences were part and parcel of the fraud and did not add to the appellant's overall culpability.

Accordingly we allow the appeal to the limited extent of quashing the order that the sentence of 12 months on count 6 run consecutively substituting for it an order that that sentence should run concurrently. All other sentences and orders will remain the same.