Qema, R. v [2006] EWCA Crim 2806

Case No 2006/03234/A3[2006] EWCA Crim 2806
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 2nd November 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE HUGHES
MR JUSTICE HENRIQUES
Between
R E G I N ACrown-v -
Between
BESNIK QEMA
Computer Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS TANIA PANAGIOTOPOULOU appeared for Appellant
J U D G M E N T

LORD JUSTICE HUGHES:

This

[1]appeal against sentence presents a challenge which is restricted to the term of imprisonment imposed in default of payment of a confiscation order made under the Proceeds of Crime Act 2002.[2]The appellant was convicted on an early plea of guilty of supplying cocaine and also of a forgery offence, which amounted to supplying a forged passport to order. The first of those offences triggered the confiscation provisions of the Proceeds of Crime Act. On 12th May 2006 there was a contested hearing. The appellant gave evidence, he called evidence and he adduced a number of written statements from persons resident in Albania. There were large deposits of cash that had been made into a number of different accounts held by the appellant. His explanations for them were universally unsatisfactory and thoroughly so. They were rejected by the judge as plainly false, as was a good deal of the evidence which was called on his behalf. A flavour of the evidence can be gathered from the appellant's claim that he had sold a second -hand motorcycle for £8,000, which accounted for a cash deposit in that sum. He was supported in that evidence by somebody who said that he had bought it, but the cycle in question had a brand new value not greater than £5,500, and the appellant conceded that he bought it for that.[3]Making all possible allowances for legitimate income, and there was some, and for some other sources of money which were untainted, and there were some of those, the judge held that the appellant's benefit from criminal conduct amounted to £119,000 odd. Including money which had been transferred to Albania, the realisable assets were £70,724.58. It follows that the confiscation order was made in that latter sum. The appellant was given a year to pay, which, considering that the assets were all identified, was not ungenerous. The judge was required by section 35(2) of the Proceeds of Crime Act and section 139(2) of the Powers of Criminal Courts (Sentencing) Act 2000 to fix a term of imprisonment in default of payment. For orders up to £50,000, the maximum is 18 months. For orders up to £100,000 it is 2 years. The judge fixed a term of 20 months, which is exactly in scale with that ladder of maxima because the £70,000 of the order was just short of halfway between £50,000 and £100,000.[4]Miss Panagiotopoulou challenges that term. Her submission is that it is manifestly excessive or wrong in principle, and that submission is founded principally on a single sentence at the conclusion of the judgment of this court in R v Siddique [2005] EWCA Crim 1812. In that case the principal question for the court was whether the confiscation order, which was in the sum of £3 million, had been properly justified or not. It was held that it was. The defendant there had been sentenced to a term of 11 years for the principal drug trafficking offences. The default period fixed by the judge was a further 7½ years. This court dealt with that in three sentences:
"31. We, however, do consider that the term of 7½ years in default is too harsh, bearing in mind the principle of totality. Accordingly we reduce it to one of 5 years' imprisonment. To that extent the appeal is allowed."
[5]We do not doubt that totality is a relevant factor. We remind ourselves that the periods set out in section 139(4) are maxima.

(S) 821 specifically observed:

"Normally the court is likely to determine that the appropriate period in default will fall between the maximum for the band immediately below that which was being considered, and the band itself."
[6]That is precisely what the judge did in this case. The judgment in Szrajber was delivered by Latham J (as he then was), who is also the author of the judgment in Siddique.[7]It is also relevant that in Siddique the confiscation order proceeded on the basis that there were unidentified hidden assets to the tune of several million pounds. This case is one of identified assets. There is no possible reason on the judge's finding why this order should not be paid. The purpose of the period in default is to impose a real deterrent against non -payment.[8]We should further point out that since the passage of section 258 of the Criminal Justice Act 2003, orders of this kind for committal to prison for non -payment attract the new early release at halfway provisions of that Act. That section is in force from 4th April 2005. It applies to any order for committal which is effected after that. In other words it would apply, as counsel agrees, to the present case.[9]We are quite satisfied that there is absolutely nothing wrong with the order which the judge made in this case, and this appeal is for those reasons dismissed.[10]MISS PANAGIOTOPOULOU: I am grateful. Thank you. ______________________________

Cited in 2 later judgments