Cullen, R v [2008] EWCA Crim 1667

Case No 200801745/A5[2008] EWCA Crim 1667
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 8th July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE SILBER
SIR CHRISTOPHER HOLLAND
Between
R E G I N ACrownv
Between
GORDON CULLEN
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 J Duffy appeared for Appellant
J U D G M E N T
[1]Sir Christopher Holland: Gordon Cullen is aged 47. On 22nd June 2007 and 10th August 2007 at Mold Crown Court he pleaded guilty to a number of offences. In the result he pleaded guilty to seven counts on an indictment of selling material bearing a false trade mark, to four counts of possession of material bearing a false trade mark, to three counts of making an article infringing copyright and to three counts of dishonestly failing to notify a change in circumstances contrary to section 111A of the Social Security Administration Act. On 6th March 2008 for the trade mark offences he was sentenced to 32 months' imprisonment on each count, those sentences to be concurrent with each other. In respect of the three counts relating to the Social Security Administration Act, he was sentenced to 16 months' imprisonment. The court directed that those sentences would be concurrent with each other, but consecutive to the sentences for the trade mark offences. The overall result, a sentence of a total of four years. A confiscation order in the sum of £130,000 was made with three years' consecutive imprisonment in default of payment.[2]He appeals the sentence with the leave of the single judge.[3]Turning to the facts, they are as follows. In January 1994 the appellant submitted a claim for income support on the basis that he was a carer for his disabled daughter. In September 1996 he submitted a claim for incapacity benefit on the basis of back pain and from then on, until his arrest in October of 2006, he was paid both benefits. He also claimed housing benefit until he purchased his council home on 9th June 2003.[4]However, from 7th October 2001 he had been working on a market stall once a week, but he had wholly failed to inform the Department of Work and Pensions about his change in status. In the overall result, as reflected by his admissions, between 18th October 2001 and 20th October 2006 he was paid a total of £66,827.05 to which he was not entitled.[5]These offences came to light as the result of an undercover operation targeting traders at the market where the appellant worked to see if there was any benefit abuse and any trading standards offences. The appellant was sighted on a number of occasions working at a stall.[6]On 15th October 2006 a search warrant was executed at his home address and a great many items were seized. He was at the time in Thailand on holiday and he was arrested on his return on 20th October. The items that had been seized from his home were examined. There was a quantity of computer hard and software designed for the production of counterfeit DVDs and CDs and computer games, and, further, the raw material for the manufacture of counterfeit articles. His financial records were examined and it was established that, in addition to receiving his state benefits, he had been in receipt of substantial additional income from May 2000 onwards. There were also documents relating to the purchase of two timeshares in the United States and the purchase of two large motor vehicles. Yet further, there was evidence of numerous trips abroad. It was established that the appellant had been manufacturing and selling the counterfeit goods at his market stall and also over the internet where he had set up a website. In all he had made a profit of around £190,000 in January 2005 and October 2006.[7]Those were the facts. Additional material before the sentencing judge was a basis of plea, a past record, which for present purposes was good, and a pre-sentence report in which it was said:
"During interview, Mr Cullen expressed remorse for his behaviour and became visibly upset when discussing the impact it has had on his family. He stated these offences were motivated purely by financial gain and admits that he viewed it as a way of making 'easy money'."
[8]Turning then to the sentencing by His Honour Judge Merfyn Hughes QC, the range of offending was reviewed, and the judge then explained his sentence in these terms:
"The sentence which you will now serve will be one of four years' imprisonment. It's important that you understand how that is made up. For each of the 14 counts on the indictment contrary to the Trade Marks Act 1994 a sentence of four years' imprisonment will have been appropriate after a trial. That will be reduced to one of 32 months giving you credit for those matters to which I have referred. So far as the offences contrary to the Social Security Administration Act 1992 are concerned, a sentence of two years following a trial would in my judgment have been appropriate but again giving you credit for your plea of guilty that will be reduced to 16 months. Those terms of 32 and 16 months will run consecutively with each other making a total of four years' imprisonment."
[9]Before this court Mr Duffy on behalf of the appellant takes precisely one point. The submission he makes is this. The criminality, that is the basis for the sentencing exercise, demanded the imposition of concurrent sentences. That is that the criminality engaged in the benefit offences and the trade mark offences all can properly fall to be considered as one and therefore the imposition of consecutive sentences was wrong in the light of all the circumstances. That submission was advanced carefully in writing. It has been considered further by this court with the benefit of Mr Duffy's address.[10]In the upshot we are unable to accede to it. In the judgment of this court this was a carefully crafted sentencing exercise which properly reflected the criminality that was here apparent. The matter started with the benefit offences. Those were offences which impinged directly upon the receipt of benefit from the public. It then moved to the trade mark offences, which, to a very substantially extent, impinged upon those who are the possessors of those trade marks. There are two separate pieces of criminality here. Those separate pieces of criminality are properly reflected by the imposition of carefully adjudged consecutive sentences. For those reasons, this appeal against sentence is dismissed.