R v Mandeep Singh Rajwansee [2023] EWCA Crim 1662

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2023] EWCA Crim 1662Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday, 13 December 2023
Before
LADY JUSTICE MACUR DBEMR JUSTICE GOOSEHIS HONOUR JUDGE DREW KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
MANDEEP SINGH RAJWANSEE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR A BAJWA KC appeared for Appellant_________J U D G M E N T

Introduction

[1]This is an appeal against sentence with leave of the single judge by Mandeep Singh Rajwansee, who is aged 32. On 20 February 2023 in the Crown Court at Isleworth, the appellant pleaded guilty to two offences of transferring criminal property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002, being counts 1 and 5, and two offences of possession of criminal property, contrary to section 329(1)(c) of the 2002 Act, being counts 3 and 4.[2]On 5 October 2023 the appellant was sentenced by Miss Recorder Wass KC to two years' imprisonment, comprised of concurrent sentences of 18 months' imprisonment, each on counts 1, 3 and 5, and two years' imprisonment on count 4.

The offences

[3]On 16 October 2022 the police were engaged in an operation concerning an address in Southall, London. At 11.00 am that day a Mercedes vehicle pulled up outside the address and a man left the vehicle carrying an empty rucksack. He returned a short time later with the rucksack appearing to be full. The Mercedes vehicle was driven away and later stopped by the police. Examination of the contents of the rucksack revealed cash totalling £26,995. This comprised count 5 on the indictment.[4]At 12.05 pm on the same day, another man was seen outside the address under observation. He was in a Ford Focus vehicle. The appellant came out of the premises and placed a cardboard box onto the front passenger seat of the car. Both the appellant and the man were subsequently approached by the police. Inside the cardboard box was cash of £74,970. This comprised count 1 on the indictment.[5]The police conducted a search of the property which was the appellant's home address. Inside a bedroom the police found cash of £157,370, comprising count 4, and seven gold bars with a value in excess of £19,000, comprising count 3. Also recovered from the appellant's Audi car parked on his driveway were pieces of paper containing sums of money which appeared to be a ledger and a diary with further pieces of paper and notes which appeared to be a cash ledger. Those notes and diaries were exhibited as part of the prosecution's evidence and appeared as documents J8 and J9 onwards in the DCS file. We have read those documents and will return to them later in this judgment.[6]The appellant was arrested by the police and in interview he made no comment in relation to questions asked. The appellant was aged 31 at the time of sentence and was of previous good character, without any previous convictions.[7]In sentencing the appellant, the Recorder concluded that his role in the offending fell within medium culpability Category B and harm Category 4 based on a figure of £300,000. There were no harm B factors. That provided a Starting Point for sentence of three years with a range of 18 months to four years. The Recorder applied a discount for guilty plea of 10 per cent on the basis of a late plea and imposed 18 months on each of counts 1, 3 and 5 with two years on count 4 because it comprised the largest sum of money at £157,370.[8]Although the Recorder did not expressly state what her pre-guilty plea sentence would have been, by calculation they must have been fixed at 20 months' imprisonment for each of counts 1, 3 and 5 and 27 months on count 4.[9]It was argued during the sentence hearing that the appellant had played a lesser role and not one of medium culpability. The Recorder rejected that submission on the basis of the evidence of diary entries and pieces of paper recovered from the appellant's car and the fact that the appellant was not merely transferring large sums of money but was also holding much larger amounts. All this indicated, as the Recorder found, that the appellant had played a role with medium culpability. It was also argued that any reliance on the notes and diaries implicitly determined that the appellant was guilty of further offending, in respect of which he had not be charged or pleaded guilty. The Recorder did not accept that submission and said:
"I'm not invited to sentence you on the additional figures that appear in any of those ledgers. Merely to conclude that the existence of the ledgers themselves suggest that ... you had a role in the management of the organisation involving this money laundering, and you were not merely ... performing a lesser role."
[10]The appellant did not seek to call evidence to establish an innocent explanation of the diary entries and notes. Grounds of appeal[11]On behalf of the appellant, Mr Bajwa KC, who appeared before the Recorder in the court below, relies on three grounds of appeal. First, that the Recorder wrongly took into account the ledgers because the appellant had not been charged or admitted any offending beyond that which appeared in the indictment. Secondly, insufficient credit for plea was given to the appellant on counts 3 to 5. No issue is taken in relation to credit for plea on count 1. Thirdly, the sentence of imprisonment should have been suspended. Discussion and conclusion[12]The first ground of appeal argues that it was wrong to place the appellant within medium culpability based upon adverse findings of fact on non-indicted and non-admitted alleged acts of money laundering within the diary entries and notes. In support of that submission, Mr Bajwa has provided examples of decisions based upon their own facts whilst this court criticised sentencing when a judge has taken into account other offending not charged or admitted when passing sentence. Those examples include R v Lawrence [1981] 2 Cr.App.R (S) 49 and R v Khan [2010] 1 Cr.App.R (S) 1. Mr Bajwa submits that the Recorder has fallen into the same error.[13]We are not persuaded that this submission is correct. It is an obvious principle of fairness at least that an offender should be sentenced only for that which has been proved or accepted by him. In this case however the Recorder was not making an adverse finding of further offending by the appellant; her task in sentencing was to assess culpability based on the evidence served by the prosecution. Although there were two occasions of transferring criminal property observed by the police, comprising counts 1 and 5 on the indictment, the existence of substantially more cash and gold bars within his home indicated an ongoing readiness to transfer criminal property to others. The notes contained within the diaries and pieces of paper provided an irresistible inference that the appellant was of medium rather than lesser culpability. To have ignored them, when there was a clear and obvious inference of ongoing money laundering by the appellant, would have required the Recorder to suspend all reasonable credulity. We are satisfied that the Recorder was correct to find the appellant's role as involving medium culpability within Category B of the guideline. Imposing concurrent sentencing between counts 1, 3 and 5 with a higher sentence on count 4 (given the greater amount of cash involved) was entirely appropriate. Therefore, we reject ground 1 of this appeal.[14]Turning to ground 2 which concerns the sufficiency of the guilty plea discount, the Recorder permitted 10 per cent for what she concluded were late guilty pleas. However, that does not appear to properly reflect the chronology of the proceedings which the Recorder may have overlooked. On 17 October 2022 the appellant appeared in the Crown Court in the Plea and Trial Preparation Hearing to plead not guilty to count 1, which at that stage was the only charge. His case was listed for trial. On 10 February 2023, four months later, the indictment was amended to add counts 3, 4 and 5. On 16 February 2023 at the PTR hearing, the appellant indicated to the court that he would plead guilty to all counts. This was done through his counsel. Four days later, on 20 February 2023 the appellant pleaded guilty to all four counts. Accordingly, the appellant's guilty pleas to counts 3, 4 and 5 were entered within 10 days of the indictment being amended.[15]In the circumstances, we are satisfied that the appellant was entitled to full credit for plea on those counts, while his 10 per cent discount for guilty plea on count 1 was correct. Therefore, we agree that this very experienced criminal Recorder fell into error in restricting the plea discount to 10 per cent on counts 3, 4 and 5. A full discount on counts 3, 4 and 5 should have been given, which reduces those sentences, on counts 3 and 5 to 13 months and on count 4 to 18 months. Failing to give that discount makes those sentences wrong in principle. Therefore, we will allow this appeal on the second ground.[16]We turn to the third ground, namely that the sentences should have been suspended. Mr Bajwa submits that the appellant, without previous convictions, presents with a realistic prospect of rehabilitation and has strong personal mitigation. Further, his wife is expecting their first child such that the appellant's custody results in significantly harmful impact upon her. It is also submitted that the appellant's early life background living within Afghanistan and how he has helped himself to make a life within the United Kingdom provides strong and positive mitigation. It is submitted on behalf of the appellant that in the circumstances the seriousness of this offending should not lead to the imposition of an immediate sentence of imprisonment but for it to be suspended.[17]In refusing to suspend the sentence, the Recorder made it clear that in her view the fact that appropriate punishment could only be achieved by immediate custody outweighed the factors indicating that the sentence should be suspended.[18]In reviewing the decision to refuse to suspend the sentence of imprisonment we must be slow to intervene given that such a decision was within the reasonable discretion of the Recorder. If however, we conclude that the decision was wrong or unreasonable then this court will intervene. We also have in mind the recent decision of this court in R v Ali [2023] EWCA Crim 232, inviting sentencers to consider the greater hardship caused to those who are in custody at the present time.[19]We have come to the clear conclusion that whilst it would have been possible to suspend the sentence, it was not incorrect to decline to do so nor was it wrong in principle. These offences were serious money laundering offences, in which the appellant not only transferred large amounts of money but also acted effectively as a safe place for other criminals to hide large sums of money, obtained by criminal behaviour. The appellant was trusted to look after and distribute £278,295. We agree with the Recorder that the appropriate punishment could only be achieved by immediate custody in the circumstances of this case. Therefore, it was not wrong or excessive to impose immediate sentences of custody.[20]Accordingly, we reject ground 1 and ground 3 of the grounds of appeal but allow ground 2 in relation to the guilty plea discount. The sentences therefore are as follows: on count 1 the sentence of 18 months remains as before; on count 3 the sentence is reduced to 13 months to be served concurrently; on count 4 the sentence is reduced to 18 months to be served concurrently; and on count 5 the sentence is reduced to 13 months to be served concurrently.[21]The total sentence is therefore 18 months, less the 190 days served on Qualifying Curfew. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS22. Tel No: 020 7404 140023. Email: rcj@epiqglobal.co.uk