Smale, R v [2008] EWCA Crim 1235

Case No 2008/01448/A4Case No 2008/01510/A4[2008] EWCA Crim 1235
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 30 April 2008
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE ROYCE
and
HIS HONOUR JUDGE MICHAEL BAKER QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown- v -
Between
CHRISTOPHER SMALEANN SMALE
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr C Gillespie appeared on behalf of Christopher SmaleMiss S A Rodham appeared on behalf of Ann SmaleMiss J Bewsey appeared for Crown
JudgmentWednesday 30 April 2008
[1]The appellant Ann Smale is aged 50. Her son Christopher Smale (the second appellant) is aged 25. On 7 January 2008, at the Crown Court at Kingston upon Thames, they pleaded guilty on re-arraignment to an offence of Entering into an Arrangement contrary to section 328(1) of the Proceeds of Crime Act 2002. On 28 February 2008 they were sentenced by His Honour Judge Binning, Ann Smale to 18 months' imprisonment and Christopher Smale to 15 months' imprisonment. They each appeal against sentence by leave of the single judge.[2]The facts are these. Ann Smale is the aunt of Daniel Reynolds. He is a convicted drug smuggler who is currently serving a sentence of 16 years' imprisonment. Ann Smale, and her son Christopher, agreed to rent a safe deposit box in their own names on behalf of Reynolds on a twelve month renewable contract. That contract was entered into on 27 January 2005. They paid £645 in cash for the rental. On that day they placed a large amount of cash which had been given to them by Reynolds into the box. Ann Smale estimated that it was about £200,000.[3]On 8 March 2005 she deposited a further sum. That date was of some significance as the cocaine importation to which Reynolds pleaded guilty had taken place the previous day, 7 March, and the heroin importation of which he was convicted took place on 8 March.[4]Very shortly after those offences Reynolds went to Spain. He was arrested there in September 2005. He was extradited to this country in December 2005.[5]In January 2006 and in January 2007 Ann Smale renewed the rental contracts on the safety deposit box. On 18 January the police opened the box. They discovered that it contained just over £332,000.[6]On 19 January 2006 Christopher Smale was arrested. He said that he did not have a swipe card and key to the box as he had given them to Reynolds. Ann Smale was arrested the same day.[7]Their pleas were entered on a basis as follows. Ann Smale accepted that she opened the safety deposit box on 27 January 2005. She did so on behalf of, and on the instructions of, Daniel Reynolds. The money placed in the box was his. She was told that the money was from the sale of a property and that it was being hidden from Daniel Reynolds' partner. She accepted, however, that she was suspicious that the money may not be legitimate. She retained a swipe card and key and handed over the other one for her nephew's use. At no stage did she undertake any financial outlay herself, nor was any of the money to be hers. She obtained no financial benefit at all from assisting her nephew. She attended the box on one other occasion, in March 2005. After that she simply renewed the box and was reimbursed by Alan Reynolds. It was only after the arrest of Daniel Reynolds for drugs offences that her suspicions were clarified.[8]In his basis of plea Christopher Smale accepted that he was present at the opening of the safety deposit box on behalf of Daniel Reynolds. He had no further involvement beyond that date and immediately handed over his keys and swipe card to Daniel Reynolds. He was involved only in that he was suspicious as to the contents of the box, due purely to the large amount of money involved. However, he was not aware of the amount involved and had no ownership of the contents of the box and made no financial benefit from his role in the opening of the box.[9]There is no guideline authority for sentencing for money laundering offences. That is not surprising because the circumstances can vary so widely.

(S) 3 some relevant considerations are set out:

"7. .... .... (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."
In Monfries the appellant had arranged for sums of money totalling £30,000 to be transferred from England to Jamaica at the request of a man she knew. There was no evidence of any financial gain. She said that she did not know the provenance of the money. She had two children to look after. She had two minor previous convictions. The court reduced her two year sentence to one of 15 months' imprisonment. That was a contested case.[10]Miss Rodham on behalf of Ann Smale makes the following points. First, on the basis of the plea which was accepted, the appellant was told that the initial money was from the sale of property, but was suspicious that that might not be legitimate. That remained her state of mind until after she had renewed the contract in 2007 as she was not told why her nephew was in prison or what he had done. Secondly, she neither expected nor obtained any financial benefit. Thirdly, she has no previous convictions and there are very positive character references in the documentation. It is emphasised that her case was one of suspicion rather than knowledge.[11]We conclude that a custodial sentence was indeed merited in her case. However, bearing in mind those points and her plea, we have come to the conclusion that the correct sentence in her case was one of twelve months' imprisonment.[12]So far as Christopher Smale is concerned, Mr Gillespie points out that he was only 22 years of age at the time and that his involvement with the deposit box was for one day only. He did not retain the key or the swipe card. Nor did he derive any benefit from the enterprise. Although he had suspicions about the provenance of the money he had no knowledge.[13]We accept that in his case his involvement was very much more limited. It might also have been expected that his mother would ensure that he did not become involved in an offence such as this. We have come to the conclusion that in his case the correct sentence was one of four months' imprisonment.[14]Accordingly, these appeals are allowed to the extent indicated.