Olumba, R. v

A default term for non-payment under Powers of Criminal Courts (Sentencing) Act 2000 must be fixed by a discretionary assessment. It should be roughly proportionate to the default and is separate from the sentence for the underlying offence. The statutory maximum for the applicable monetary band is an upper limit, not an automatic sentence. Where the confiscated sum is close to the lower limit of the band, the maximum term will not usually be appropriate.

The appellant pleaded guilty at Isleworth Crown Court to being knowingly concerned in the fraudulent evasion of the prohibition on importing class A drugs, namely cocaine. He received six years’ imprisonment and a recommendation for deportation.

A later confiscation order required payment of £110,000. The Crown Court imposed the statutory maximum of three years’ imprisonment in default, consecutive to the substantive sentence. The appellant appealed, with leave, against that default term only. The issue was whether the maximum term was appropriate where the amount fell only just within the relevant statutory band.

1. Appeal allowed. The three-year default term was reduced to two years’ imprisonment, to be served consecutively to the substantive sentence.
2. Section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000 set three years as the maximum default period for a confiscated amount exceeding £100,000 but not exceeding £250,000. It did not require that maximum to be imposed.
3. A default period is intended to be roughly proportionate to the default. It is distinct from the punishment for the offence which led to the confiscation proceedings, although the court may take general account of the circumstances. Fixing the period within the statutory band is therefore an exercise of discretion, consistently with Szrajber (1994) 15 Cr App R(S) 1821.
4. The amount of £110,000 was only just above the lower boundary of the band. The brief sentencing observation gave no indication of an evaluative exercise and suggested that the maximum might have been treated as automatic. Applying the guidance in Elias [1998] EWCA Crim 3519, the maximum would not usually be appropriate for an amount near the bottom of the band.

• Court of Appeal (Criminal Division) — allowed the appeal against the default term: [2008] EWCA Crim 408.
• Isleworth Crown Court — following the appellant’s conviction and substantive sentence, imposed a confiscation order of £110,000 under the Proceeds of Crime Act 2002 and a consecutive three-year term in default.