Cave, R v [2008] EWCA Crim 1119

Case No 2008/1433/A3[2008] EWCA Crim 1119
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7 May 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
DENNIS CAVE
Computer Aided Transcript of the Stenograph 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)
Mr T Evans appeared for Appellant
J U D G M E N T
[1]MR JUSTICE TREACY: This appellant is Dennis James Cave. On 17th December 2007 at the Crown Court at Cardiff he pleaded guilty to conspiracy to transfer criminal property. He was sentenced on 3rd March 2008 by His Honour Judge Denyer to a term of three years' imprisonment. The judge directed that 20 days spent on remand should count towards sentence.[2]There were two co-accused involved in the matter: a man called Hughes who pleaded guilty to the same conspiracy (count 1) as that involving Mr Cave, but also a further offence (count 2) of concealing criminal property. He was sentenced to three years' imprisonment consecutive to a term of 310 days, which represented a period of licence recall pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. There was a further co-accused, a man called McHale, who was found not guilty.[3]The facts of the matter are these. On 5th September 2007 officers of the Serious Organised Crime Agency were conducting observations on Hughes. They saw him leave Swansea and drive to Bristol. During the course of the morning he was seen to make several phone calls and just before 2 o'clock in the afternoon he went to a shopping centre in Bristol. At about 2.20 pm he met the appellant and McHale outside a cafe. McHale was carrying a distinctive orange bag which he passed on shortly afterwards to the appellant. The three men sat together at a table. An undercover officer was able to sit very close to them and was able to overhear what was being said. During the course of the conversation there were obvious references to drugs.[4]At about 2.45 pm the three men left the cafe. By this time Hughes was in possession of the distinctive orange bag and it remained in his custody until he was arrested in Bristol at about 3.30 pm. When the bag was searched it was found to contain £65,480 in cash, split into eleven separate bundles, containing largely Scottish notes.[5]At about 9.40 pm on the same day the car in which the appellant was sitting was stopped. The appellant had hired the car in a false name and was en route back to Liverpool from whence he had started. He and McHale were arrested. When arrested the appellant gave a false name. It was the same false name that he had used to hire the car in the first place. After arriving at the police station he admitted his true identity.[6]Telephones were examined and that showed that there had been a number of calls between this appellant and Hughes not only on 5th September but also on the day before. When Hughes' home was searched a box was found and inside that was approximately £23,000, that represented the additional count (count 2) to which Hughes pleaded guilty. In interview the appellant largely made no comment but disputed that there was any mention of drugs overheard by the officer whilst the men were outside the cafe in Bristol.[7]This appellant is now 36 years of age. He has previously been convicted. His convictions include a conviction for possession of heroin with intent to supply. He was sentenced to three years' imprisonment for that offence on 22nd September 2005. He was released from that sentence on licence on 9th November 2006 and was still on licence at the time this offence was committed.[8]There was a pre-sentence report available to the judge. It showed that the previous licence had been revoked at the end of September 2007.[9]Mr Evans, who has made succinct but pointed submissions to us this morning, says that the sentence which was imposed was manifestly excessive. He points first of all to the early plea of guilty which was tendered in this case. Secondly, he points to the fact that this was a single transaction, that it involved £65,000 whereas some other cases have involved considerably greater amounts. He submits that the role of this appellant was that of a delivery man who was an important part of the chain but not someone who was going to be involved in the ultimate processing of these criminal proceeds. He also observed on behalf of the appellant that the judge's remarks showed that the appellant had no knowledge of the precise initial criminal source of the money.[10]This appellant pleaded guilty to conspiracy to transfer property knowing it to be criminal property. The base offence is to be found at section 327(1) of the Proceeds of Crime Act 2002. The offence can be committed by a person who either knows or suspects that he is dealing with property representing benefit from criminal conduct. But in this case guilty knowledge was admitted and that represents more culpable conduct than mere suspicion. In this case the appellant has the benefit of an early plea. There is an issue raised as to whether the appellant knew that the money was the proceeds of drug dealing. He had apparently offered his plea to the Crown on the basis that he did not know that the money represented the proceeds of drug trafficking. The Crown's written response was that they had no evidence to gainsay this and so a plea on that basis would probably be acceptable. There does not appear to have been any written basis of plea put before the judge but the correspondence was referred to by counsel at the appellant's sentencing hearing and the pre-sentence report available to the judge reiterated the appellant's case as to the state of his knowledge of the source of the money.[11]By that stage the judge had heard evidence from undercover officers in McHale's trial as to the conversation relating to drugs at the cafe in Bristol. The judge did not call for a Newton hearing and in passing sentence on this appellant he said as follows:
"There is no doubt, though, that, by your own admission, you were involved in transporting that money from Liverpool to Bristol. There is no doubt that there was some communication between you and Mr Hughes and, in my judgment, having heard some of the evidence in the trial of McHale, there is no doubt that there was some discussion about drugs and I think it probable that this was drugs money."
It does not appear therefore that a finding was made as against this appellant that he knew that what he was dealing with was the proceeds of drug trafficking as opposed to other criminal property. The finding that the conversation generally was probably to do with drugs would be insufficient to show more.[12]The appellant's previous recent involvement as a courier in class A drug supply and his commission of this offence whilst still on licence for that matter are plainly aggravating features of this case. The fact that the appellant was involved on this occasion in a single transaction as a courier has to be viewed in the context of the previous conviction.[13]The Proceeds of Crime Act 2002 has replaced earlier legislation which distinguished between drug related and non-drug related money laundering offences. In R v Monfries [2004] 2 Cr.App.R (S) 3, Cresswell J giving the judgment of this court made certain observations which appear to us to remain helpful in assessing sentence under the 2000 Act, notwithstanding that those observations were made in a drug trafficking case under the old legislation. At paragraph 7 his Lordship said this:
"The relevant considerations that apply in cases of this type include the following: (i) The circumstances of assisting another to retain the benefit of drug trafficking and/or criminal conduct vary so widely that this court has not to date provided detailed guidelines. (ii) There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence, when considering the appropriate sentence for the laundering offence. (iii) The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct. (iv) Regard should be had to the extent of the launderer's knowledge of the antecedent offence. (v) The amount of money laundered is a relevant factor."
[14]In this case the judge was not sure that the monies involved were the proceeds of drug trafficking, although it may be thought that since the Proceeds of Crime Act 2002 now concentrates on benefit deriving from all criminal conduct that that is a factor of lesser importance than it may have been in the past. The judge having made no finding against the appellant in respect of knowledge of the actual source of the money was entitled to pay some regard to it, although its weight in our judgment must be relatively limited. The gravamen of this offence now is the dealing with the proceeds of criminal activity knowing that that was the case.[15]This appellant played a significant role by travelling from Liverpool to South Wales with approximately £65,000, having prearranged the trip and a meeting by telephone and having hired a car in a false name. This would seem to suggest that he was a person who was trusted and who was not a mere cipher in the operation. It is rightly pointed out that the single trip and the amount of money involved are in contrast to larger cases involving ongoing money laundering. Those are plainly relevant considerations.[16]Having taken account of all the circumstances, we take the view that the sentence passed in this case, which represents a term of four-and-a-half years after a trial, was too long. Taking account of the aggravating feature of the previous conviction we have come to the conclusion that a sentence of three-and-a-half years after a trial would have been appropriate. Giving full credit for an early plea, that would reduce the sentence to one of two years and four months and we substitute that term for the term which was imposed by the judge. To that extent therefore this appeal is allowed.