No:
200605827 A9
Neutral Citation Number:
[2007] EWCA Crim 3432
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 24th July 2007
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE TREACY
MR JUSTICE BEATSON
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R E G I N A
v
KEVIN RAYMOND ROSE
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Mr M Hurst
appeared on behalf of the
Applicant
J U D G M E N T
1.
LORD JUSTICE MOSES: We say straight away that we shall grant leave in this application and, subject to the usual directions I shall give later, we shall consider this as an appeal.
2.
This appellant, as he now is, was sentenced to 30 months' imprisonment in October 2006 at Nottingham Crown Court after he had been convicted of three counts of possession of criminal property contrary to
section 329(1)
(c) and 334 of the
Proceeds of Crime Act 2002
. We shall not lengthen this judgment by setting out the full terms of the provisions but they are important to our consideration of the appropriate sentence following that trial. The important aspect of the offence is that it is committed where a person suspects that property constitutes or represents his own or another's benefit from criminal conduct (see section 340(3)(b)). It can be also be committed where someone knows that that is so but in the instant case what was alleged against this appellant and that of which the jury found him guilty was that he had suspected that three different large items of importance to the losers were on his property and that he suspected that they were proceeds of crime.
3.
He had bought a farm near Retford in Nottinghamshire. The previous occupier had allowed equipment to be kept on his land and this appellant, once he had bought the farm, allowed that to continue. He said, as he said at trial and as is confirmed in the advice written on his behalf, that it was not uncommon for vehicles to be left without prior notification. That was an important plank in the prosecution's case against him for this reason. On the morning of 16th June 2005, a brewer's dray (that is a lorry and trailer) were stolen and the very same day was parked at the applicant's farm while he was out; in other words those who had removed those items of equipment knew where they could safely be stored. The trailer had a small proportion of its original load. The cab was found burnt out elsewhere.
4.
The police, in executing a search warrant on the same day, found two other significant items for commercial use on that farm: a JCB Teleporter, stolen on about 13th June (in other words a month later) and a HGV trailer unit with kegs and cases of alcohol and soft drinks stolen on the morning of 16th June, and that is the subject matter of the first count. The horse trailer, of course, was not a commercial item but was no doubt of importance to those keeping the horse and had been stolen about a month before. The applicant never admitted that he had suspected that any of those items were the proceeds of crime but in interview he told that which turned out to be a lie because he said that the horse trailer that was stolen about a month before had been bought by him. It turned out that it had not and he had his dates wrong and that by the time he was saying it was bought it had been not yet stolen.
5.
The other significant aspect of the facts to which we ought to draw attention is the value of these items, which amounted to £27,272: the horse trailer £1,750, the JCB Teleporter £10,000 and the lorry trailer and its contents £15,522.50, all save possibly the horse trailer of importance and use to the commercial owners of that property.
6.
There is, however, a somewhat unusual aspect of this case. This appellant is now 49. He was, we believe, 48 at the time of these offences. He was a motorcar dealer and, when the police checked at his motorcar premises, it is significant to observe that nothing untoward was found. He was a man who not just had never been in trouble before but also had a positively good character, as witnessed by a number of those who wrote to the court speaking highly of him. The pre-sentence report records his persistent denial of his guilt and attributed his behaviour to a lapse of judgment but it recorded the likelihood of reoffending was very low and recommended a suspended sentence order with a requirement of unpaid work.
7.
In helpful submissions advanced on his behalf today by Mr Hurst, he sensibly concedes that this case did cross the custody threshold. It was a powerful point against this applicant that those who had taken the brewer's dray knew where to take it to and also that the items were of important commercial use to their losers, certainly two of them, and were of value, not just monetary value, to them. It is for those reasons that the case crossed the custody threshold. As will be obvious from the nature of the offence, the use of these offences to catch those who have stolen property on their land is obviously sensible. It obviates the need to prove that those in possession of stolen property knew or believed it was stolen. The question then arises as to whether and what the appropriate level of sentencing is in relation to those who are not handlers of stolen property but nevertheless guilty of an offence under the
Proceeds of Crime Act 2002
which, it should be noted, has the same maximum sentence as that which is imposed on handlers of stolen property. Mr Hurst invited this court to take the opportunity to set out guidelines for appropriate sentencing for cases of that sort. We decline to do so, although we observe that if the deployment of these sections is frequent it may be profitable that someone should do so in the future. But we are assisted, nevertheless, by another guideline case, which was
R v Bernard Webbe
[2002] 1 Cr.App.R(S) 22 at page 82, which set out guidelines in relation to handling stolen goods. It endorsed the Sentencing Panel's identification of aggravating features, two of which apply in this case, namely the closeness of the handler, in this case the one who suspects that the goods are the proceeds of crime, to the primary offence and the high value of goods to the loser; in this case the high value is not merely attributable to value but also to use in trade. The court in that case took the view that the appropriate range of sentences in the more serious cases were between 12 months to four years and in less serious cases the case could be prosecuted before the Magistrates, but that would be where the property was only £10,000 (see paragraph 16).
8.
We take the view, guided by comparison with the usually more serious offence of handling stolen goods, that 30 months imprisonment for a man with this character was manifestly excessive. We take the view that the sentence ought to have reflected the fact that he had not been convicted of handling stolen goods and that he was otherwise a man of good character. We do not think that the sentence did so. We think that a sentence of 12 months' imprisonment on each of these offences to run concurrent would adequately reflect the gravity of these offences. After all, to send a man to prison for the first time in his life aged 48 will have a serious impact upon him, upon his family and in teaching these who are interested that these offences are not to be taken lightly.
9.
For all the reasons that we have given, we grant permission to appeal, we allow the appeal and we dispose of the appeal in those terms, by reducing the sentence of two and-a-half years in total to one of 12 months' imprisonment, made up of 12 months imprisonment on each of those three counts to run concurrently.