[2013] EWCA Crim 1662Case No No: 2012/7183/A4Venue No: 2012/7183/A4, Royal Courts of Justice, Strand, London, WC2A 2LL
Between
REGINANEIL DAVEY
Before
Lord Justice EliasMr Justice Edwards-Stuart the Recorder of BristolHis Honour Judge FordMr J Gau appeared on behalf of the ApplicantMr M Tomlinson appeared on behalf of the CrownDate 11 June 2013
[1]MR JUSTICE EDWARDS-STUART: Just before 2.00am on Sunday 20th June 2010 a tree was cut down in the garden of number 4 Heavytree Road, Poole, Dorset. The tree was a Maritime Pine and was protected by a tree preservation order. It was cut down because a neighbour, the appellant, did not like it since it obstructed his view of Poole Harbour.[2]On 23rd November 2012 at the Crown Court at Bournemouth the appellant was convicted of causing or permitting the wilful destruction of the tree, contrary to section 210(1) of the Town and Country Planning Act 1990 . A confiscation order was made under the Proceeds of Crime Act 2002 in the sum of £50,000 and he was fined £75,000. The confiscation order reflected an unchallenged assessment of the increase in value of the appellant's property as a result of the removal of the tree. He appeals against that sentence with the permission of the single judge, although she did not grant a representation order. The facts[3]The tree was cut down by a Mr Thomas McGuire using a chainsaw. He gained access to the garden at number 4 Heavytree Road via the appellant's property. At the time when the tree was felled the appellant was in France on his honeymoon. When questioned he denied any involvement in the felling of the tree. However, the appellant did admit to having engaged Mr McGuire to cut down some branches of a tree on the left hand side of his property. He said that he did not know Mr McGuire personally, but he knew of him through his ex-girlfriend. Mr McGuire also denied having had anything to do with the felling of the tree. He said he was in Yeovil at the time. Telephone records revealed that both of these accounts were untrue.[4]The case for the Crown was that the appellant paid or otherwise instructed Mr McGuire, who was a tree surgeon, to cut down the tree in order to improve his view over Poole Harbour and the Purbeck Hills beyond. Mr McGuire was charged with destroying the tree. That was the second count on the indictment. The sentence[5]The judge said that the appellant was the prime mover in the plan to cut down the tree. It was a planned operation, not something which occurred on the spur of the moment. The judge said that what the appellant did demonstrated remarkable arrogance and a complete contempt for the safety and property rights of the appellant's neighbours. He said that the operation, carried out at the dead of night, put the appellant's neighbours' lives at risk. However, he made it clear that he was not sentencing the appellant for an act of criminal damage being reckless as to whether life was endangered.[6]In relation to the financial penalty, the judge noted that the appellant was a man of some wealth, which he said was obvious to all, and that it had been accepted on his behalf that he would be able to meet any financial penalty imposed by the court. Mr McGuire by contrast was a man of modest means who was struggling financially.[7]The judge took into account the fact that the findings of guilt meant that both the appellant and Mr McGuire had lost their reputations.[8]The judge referred to section 210(3) of the Act which required him to have regard to any financial benefit that had accrued or was likely to accrue to the appellant. The value obtained by the Crown showed that the value of the appellant's property had been enhanced by some £50,000 as a result of the removal of the tree and as we have noted that figure was not challenged. The judge then said:
"I start by making a confiscation order in your case."
Since the judge was satisfied that the realisable amount available to pay any order was at least £50,000, he made a confiscation order against the appellant in that sum. The judge then turned to count 1, which was the count against the appellant. He said that the tree was a notable pine in the Parkstone area and that its felling must have caused considerable distress and upset to the appellant's neighbours. He concluded that the appropriate fine was £75,000. The grounds of appeal .[9]The applicant submits that the judge did not take the confiscation order into account when he imposed the fine. He relies on section 13(2) of the Proceeds of Crime Act 2002 , which provides that the court must take account of the confiscation order before it imposes a fine. The appellant submits that the size of the fine suggests that the judge did not take into account, or at least did not take into account properly, the amount of the confiscation order.[10]In his oral and succinct submissions to us today, Mr Gau, who has appeared for the appellant but who did not appear in the court below, has made the following submissions. First, he referred us to a case relied on by the Crown, the case of Cussens [2009] EWCA Crim. 1026 in which the defendant had removed £70,000 from a company controlled by him in order to deprive a potential creditor of the fruits of a County Court judgment. Having removed that money to another one of his companies, he then paid himself from the second company the sum of £50,000. In the event he was fined £25,000 on two counts in relation to transferring company property and a compensation order was made in the sum of £59,200. That figure was arrived at by taking the £50,000 which the defendant had paid himself and then adding a figure of £9,200 to reflect the change in value of money over the relevant period of time. It was submitted that in effect the judge imposed a financial penalty of some £110,000 for offences where the applicant dishonestly took £50,000 from the company. What is said today by Mr Gau is that in that particular case the amount of the fines was significantly less than the total amount of money involved. He accepts, we think realistically, that that can only be relied on in the most broad sense as giving some indication of the relationship between the sums involved and the amount of the fines.[11]His second ground was that the judge gave no indication that he had actually taken into account the amount of the compensation order when he fixed the level of the fine. His third point is that whilst the Town and Country Planning Act refers to the financial benefit, Mr Gau submitted that the amount of the compensation order must not only have taken into account the change in value of the house, but also the amenity value of the improved view. His fourth point was that the difficulty presented by the judge's lack of reasons must lead to an inference that there had been some element of double-counting.[12]Bearing those submissions in mind we turn now to the sentence. The appropriate sentence[13]In so far as it is being alleged that the judge did not follow the correct procedure because he failed to deal with the confiscation order before he imposed the fine, we reject that submission. The judge plainly dealt with the confiscation order first and then moved on to consider the appropriate financial penalty. However, we do not think that this is the real point being made on behalf of the appellant. The real point is that when fixing the level of a fine the judge did not take into account, or at least did not properly take into account, the fact that the confiscation order that he had just made effectively eliminated any financial benefit to the appellant, so that there was no financial benefit to be taken into account when determining the level of the fine. Assuming, as we must, that the confiscation order was realistic in its amount and effectively removed the financial benefit to the appellant as a result of the removal of the tree, it is submitted there was no financial benefit for the court to take into account when assessing the level of the fine. Accordingly, having made the confiscation order, it would not have been correct for the judge to increase the amount of the fine on the ground that there had been a financial benefit to the appellant.[14]So, the first question raised by this appeal is whether the judge did in fact increase the level of a fine on the basis that the appellant had received a financial benefit as a result of the destruction of the tree.[15]When imposing the fine the judge did not say that he was taking any financial benefit into account. However, he must have taken into account his findings that the appellant was the prime mover behind the offence and that it involved remarkable arrogance and a complete contempt for his neighbours' property rights. He then said also that he was taking into account that it was a notable tree and that its destruction would have caused considerable distress and upset to some of the appellant's neighbours.[16]However, as we have indicated, it is submitted on behalf of the appellant that the size of the fine alone suggests that the judge must have taken the financial benefit into account when fixing the level of the fine and that this would in effect involve double-counting.[17]We are not persuaded that the judge did take into account any financial benefit to the appellant when he imposed the fine. It is true that he did not say that he did, and he dealt with the confiscation order as a separate exercise. So we therefore turn to the question of whether the fine was in any event manifestly excessive.[18]The fine was on any view very substantial, but although the confiscation order removed the financial benefit to the appellant, namely increasing the value of this property as a result of the removal of the tree, it did not remove the amenity benefit of the improved view that the appellant will enjoy while he remains in occupation of the property. The fact that this was a significant benefit is demonstrated by the lengths to which the appellant was prepared to go in order to achieve it. Accordingly, that was a factor that the judge would have been entitled to take into account. We do not accept therefore Mr Gau's submission that this was reflected in the confiscation order.[19]In addition, there was the very serious aggravating feature that the tree was not owned by the appellant. It was his neighbour's tree. Whilst its removal may have advanced the amenity value of the appellant's property, doubtless it removed the amenity value for those other properties for which the tree would have been an attractive local feature and not an inconvenience. There was no evidence before the court as to the appellant's financial circumstances beyond the fact that he was clearly a man of some means. There is no limit to the amount of the fine that the Crown Court can impose. There are no relevant guidelines, although we note that the maximum fine that can be imposed on summary conviction has been £20,000 since 1991.[20]The facts that we have already identified, demonstrate that this was an offence that was one of the most serious of its type. In addition, we consider that fines for this type of offence must include an element of deterrence. Whilst we consider that the level of the fine was very high, the judge had the advantage of observing the appellant during the trial and was therefore in a position to form a view about his culpability and attitude to the offending in a way that this court cannot.[21]For the reasons that we have already given, the offence called for a very heavy fine. In the absence of any evidence that a fine of this level was disproportionate having regard to the appellant's means, and in the unusual circumstances of this case, we do not consider that it was manifestly excessive. Accordingly, this appeal is dismissed.[22]MR TOMLINSON: My Lord, I am grateful. There is an application for the respondent's costs. I hope that a schedule has found its way to your Lordships.
LORD JUSTICE ELIAS: No, I have not seen one.
[24]MR TOMLINSON: If it has not, I do have copies of the schedule. In principle, the respondent has been put to the expense of responding. It is a local authority funded by the taxpayer, both in terms of skeleton argument and attendance today and therefore I seek the costs of the respondent. (Handed)
LORD JUSTICE ELIAS: Mr Gau, have you had a chance to look at this?
[26]MR GAU: My Lord, I have, yes. May I briefly respond? The problem is that this is in fact an application for leave to appeal, where the respondent would not normally be present, and so any costs incurred are not as a result of the appellant's submissions. Had we been given leave by the single judge then my learned friend's submissions would have weight and I would have little or nothing to say.
LORD JUSTICE ELIAS: Mr Tomlinson, were you requested to be here?
[28]MR TOMLINSON: Yes, I was not only requested to be here but also to draft a skeleton argument.
LORD JUSTICE ELIAS: We will rise. (The court rose to confer)
LORD JUSTICE ELIAS: We think you should have your costs. You were required to be here by direction of the judge. In those circumstances you should have your costs.
[31]MR GAU: My Lord are they from central funds or from the applicant?
LORD JUSTICE ELIAS: They would be from the defendant.