Smith, R. v

When fixing a term of imprisonment in default under section 139 of the Powers of Criminal Courts (Sentencing) Act 2000, the court has a discretion within the applicable statutory band. It must consider all the circumstances and should not apply an arithmetical formula based solely on the confiscation amount.

The term must promote payment and co-operation with the confiscation order. Persistent non-co-operation may justify a severe term, but the court must also allow for an order which is below the maximum amount within its band. The punitive sentence for the substantive offence serves a different purpose and does not engage totality. Enforcement extensions require hard evidence that assets are being realised.

The appellant had pleaded guilty to conspiracy to supply cocaine and received 13 years’ imprisonment. Following confiscation proceedings, the Recorder of Liverpool found that he had a criminal lifestyle, assessed his benefit and recoverable amount at £622,622, and imposed the statutory maximum default term of five years.

The appellant challenged only the length of the default term. The issue was whether the maximum term was justified for an order within, but not at the top of, the £250,000 to £1 million statutory band, given his lack of co-operation in the confiscation proceedings.

1. The appeal was allowed to the extent of varying the default term from five years to four-and-a-half years. The appellant’s sustained failure to provide evidence, co-operate, or account for assets was a major factor which justified a severe term.

2. Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 gives the court a discretion up to the maximum term in the applicable band. The choice of term requires consideration of all the circumstances. It is not governed by an arithmetical calculation from the position of the confiscation order within that band.

3. The purpose of imprisonment in default is to secure payment and the defendant’s co-operation with the confiscation order, so that criminal benefit is not retained. It must make clear that non-compliance offers no advantage. That purpose supported a substantial default term in this case.

4. Nevertheless, the order was not for the maximum amount in the £250,000 to £1 million band. The sentencing judge should therefore have made an allowance for that fact. A term of four-and-a-half years properly reflected both the appellant’s intransigence and the amount ordered.

5. Totality with the 13-year substantive sentence was irrelevant. The substantive sentence punished drug dealing, whereas imprisonment in default was directed to compliance with confiscation. The court further stated that no enforcement extension should be granted unless the appellant proved through hard evidence that assets were being realised; a lawyer’s assurance alone was insufficient.

• Court of Appeal (Criminal Division): Allowed the appeal in part and varied the default term from five years to four-and-a-half years: [2009] EWCA Crim 344.
• Recorder of Liverpool: On 13 June 2008, made a confiscation order, found a criminal lifestyle, and imposed a five-year default term.