Qema, R. v

When fixing imprisonment in default of payment of a confiscation order, the statutory periods are maxima. The court should assess the amount of the order within the statutory bands and may have regard to totality. Ordinarily, the appropriate term will fall between the maximum for the band immediately below and the maximum for the applicable band.

The nature of the realisable assets is material. A substantial default term may be justified where assets are identified and there is no reason why the order cannot be paid, since the term must provide a real deterrent against non-payment. The early-release provisions introduced by section 258 of the Criminal Justice Act 2003 apply to qualifying committals effected after 4 April 2005.

The appellant pleaded guilty to supplying cocaine and to a forgery offence involving the supply of a forged passport. The drug offence engaged the confiscation regime under the Proceeds of Crime Act 2002.

After a contested confiscation hearing, the sentencing judge rejected the appellant’s explanations for substantial cash deposits. The judge found criminal benefit of more than £119,000, realisable assets of £70,724.58, and made a confiscation order in that sum. He allowed one year for payment and imposed 20 months’ imprisonment in default.

The appellant appealed only the default term, contending that it was manifestly excessive or wrong in principle, principally by reference to R v Siddique [2005] EWCA Crim 1812.

1. Appeal dismissed. The 20-month term of imprisonment in default was neither wrong in principle nor manifestly excessive.

2. Sections 35(2) of the Proceeds of Crime Act 2002 and 139(2) of the Powers of Criminal Courts (Sentencing) Act 2000 required the judge to fix a default term. The periods in section 139(4) were maxima. The term selected was proportionate to the statutory scale: the confiscation order lay just below the midpoint between £50,000 and £100,000, whose respective maxima were 18 months and two years.

3. The court accepted that totality was relevant, as recognised in R v Siddique [2005] EWCA Crim 1812. That case did not make the present term excessive. Its order reflected several million pounds of unidentified hidden assets and followed an 11-year sentence for drug trafficking. Here the assets were identified and, on the judge’s findings, there was no reason why the order should not be paid.

4. The court applied the ordinary guidance in R v Szrajber (1994) 15 Cr App R(S) 821: normally the term will fall between the maximum for the immediately lower statutory band and the maximum for the applicable band. The sentencing judge had done precisely that. A default term must impose a real deterrent against non-payment.

5. Section 258 of the Criminal Justice Act 2003 also meant that the new halfway early-release provisions applied to this committal, because it would be effected after 4 April 2005.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against the 20-month term of imprisonment imposed in default of payment of a confiscation order.
• Sentencing judge: made a confiscation order for £70,724.58 and imposed 20 months’ imprisonment in default of payment.