Case Law Updater – White Collar Crime, December 2023

Our case law updater team comprises Joseph Sinclair, Rachel Pain, Fatima Jama and Georgia-Mae Chung.

Rex v Belsey [2023] EWCA Crim 1125

Fraud by abuse of position – appeal against sentence – harm

The applicant was convicted of two offences of fraud by abuse of position and was sentenced to a total of seven years’ imprisonment. The sentence was found not to be manifestly excessive, and the appeal refused.

The applicant, in their capacity as co-executor of a widow, paid monies realised from assets into their personal account rather than distributing to beneficiaries. Funds transferred by a different family for conveyancing services were also withdrawn and spent, without any services provided.

The appellant argued the loss had been incorrectly calculated as it did not account for payment for work carried out by him. As bills had not been drawn up and payment sought in the correct way, this argument was rejected.

The sentencing judge also moved harm up a category above the relevant financial loss, due to the distress described in the victim personal statements. This was deemed to be the correct approach.

[9] “The relevant guideline provides that moving up a category is appropriate where there is serious detrimental effect on the victim, whether financial or otherwise.”

Rex v Entain Southwark Crown Court (U20231779) 

Deferred Prosecution Agreements – failure to self-report 

Entain PLC, formerly GVC Holdings plc, entered into a deferred prosecution agreement with the Crown Prosecution service in respect of alleged bribery offences in Turkey between 2011 and 2017. Although the company had not self-reported, “the CPS considered that the extent of the voluntary production of material by Entain was akin to self-reporting and that Entain’s standard of co-operation has been exemplary”:

[11]… Entain provided (and has continued to provide) significant co-operation to the investigation and made significant admissions for the purposes of section 7 of the 2010 Act. The admission and the voluntary provision of material by Entain had the effect of significantly narrowing the issues in the investigation of GVC.

Rex v Creddick Price [2023] EWCA Crim 1060

Appeal against sentence – proceeds of crime – suspended sentence

This was an appeal against two concurrent sentences of three months’ and nine months’ imprisonment that had been imposed for two counts of concealing criminal property, contrary to section 327(1)(a) of the Proceeds of Crime Act 2022. The appellant had pleaded guilty to both counts in the Crown Court.

Each offence consisted of the appellant concealing a quantity of cash in his caravan. He was sentenced on the basis that he had earned the money through work but had failed to declare his income to His Majesty’s Revenue and Customs, intending to cheat the Revenue and avoid payment of tax.

The sole issue for appeal was whether the judge should have suspended the sentences of imprisonment that were imposed. The appellant submitted that the imposition of an immediate custodial sentence was manifestly excessive.

The appeal was dismissed, as the court did not consider that the sentence was either manifestly excessive or wrong in principle. The judge had been entitled to conclude that this was a case where immediate custody would constitute the only appropriate punishment. There were strong arguments for suspending the appellant’s sentence but there were also strong arguments for immediate custody. The most notable of these was said to be the fact that the appellant had repeated the same offending in 2020 after having already been detected two years prior.

[12] We acknowledge that the decision whether or not to suspend a custodial sentence is often the most difficult decision which a sentencing judge has to make. In many cases, and certainly in most cases which come before this court, there are things to be said for and against suspending the sentence. The guideline is helpful insofar as it identifies relevant factors, but it is not simply a matter of counting the factors on one side or the other which apply in a particular case. Moreover, the competing factors are incommensurable. Weighing the competing factors can never be an arithmetical exercise. The question of which factor or factors should prevail in any particular case is necessarily a question of judgment and, moreover, a judgment of the kind which sentencing judges are experienced in addressing. This court will not lightly interfere with judgments of that nature. Appellants in such cases will not succeed unless they can show that the decision not to suspend their sentence was either manifestly excessive or wrong in principle.

[13] In the present case, while we acknowledge that there were strong arguments for suspending the appellant’s sentence, we also acknowledge that there were strong arguments for imposing an immediate custodial sentence, notably the fact that the appellant repeated his offending in 2020 after his offending had been detected in 2018. The judge was entitled to conclude that this was a case in which appropriate punishment could only be achieved by immediate custody.

[14] Balancing all the relevant considerations, we do not consider that it was either manifestly excessive or wrong in principle for the judge to impose an immediate custodial sentence.

Rex v Cooper & Ors [2023] EWCA Crim 945

Approach to totality when sentencing a defendant for an offence contrary to the Proceeds of Crime Act 2002

The main issue in each of these otherwise dissimilar appeals concerns the approach to totality when sentencing a defendant for an offence contrary to the Proceeds of Crime Act 2002 in respect of the criminal benefit from offences for which the defendant also falls to be sentenced.  

The length of a custodial sentence must be the shortest term that is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it. The court must follow any relevant sentencing guideline unless that would be contrary to the interests of justice.

[10.] The approach to sentencing in this type of case was considered by this court in R v Greaves[2010] EWCA Crim 709; [2011] 1 Cr App R (S) 8, R v Alexander and Others [2011] EWCA Crim 89; [2011] 2 Cr Ap R (S) 52 and R v Randhawa [2022] EWCA Crim 873. Those decisions show that there is a broad spectrum of cases involving the combination of 2002 Act offences and other underlying, primary, offending… 

[11.]It is important, in each case, to identify whether the 2002 Act offence involves additional culpability and/or harm, and, if so, the extent… 

[12.]…where the 2002 Act constitutes nothing more than the continued possession of the proceeds of the primary offence, then there is unlikely to be any additional culpability or harm beyond that reflected in the primary offence. In that event, it would be wrong in principle to impose any additional penalty. If an immediate custodial sentence is imposed for the primary offence this principle requires a sentence for the 2002 offence that runs concurrently with it.