Epton, R v

In a sentence appeal, the court may assess culpability from the admitted facts and the prosecution opening. The Crown’s decision not to pursue a conspiracy count does not prevent the sentencing judge from finding that the offender knew there were no underlying investments, where that finding is supported by the material relevant to the offences admitted.

A substantially higher level of responsibility than that of comparable offenders can justify a sentence which would otherwise appear disparate. A separate, dishonest transfer of criminal property, made after the offender knew of official intervention, may properly attract a consecutive sentence. Serious subversion of investment regulation creates a public danger and warrants deterrent sentencing.

The appellant pleaded guilty at Hull Crown Court to carrying on a regulated activity without authorisation, contrary to section 23 of the Financial Services and Markets Act 2000, and to transferring criminal property, contrary to section 327 of the Proceeds of Crime Act 2002.

He had managed the United Kingdom side of an internet investment scheme which promised exceptional returns without underlying investment. After United States authorities intervened and freezing orders were made, he transferred £10,000 from a United Kingdom account to himself. He received 15 months’ imprisonment on the first count and a consecutive nine months on the second, together with an eight-year directors’ disqualification.

He appealed on the ground that the overall two-year sentence was manifestly excessive, relying in particular on the abandonment of a conspiracy count, a comparable sentencing decision, mitigation and totality.

1. Appeal dismissed. The sentences of 15 months’ imprisonment for the unauthorised regulated activity and nine months’ imprisonment consecutively for transferring criminal property, making two years in all, were not manifestly excessive.

2. The Crown’s decision not to proceed with the conspiracy count did not require the sentencing judge to treat the appellant as unaware that the promised investment returns lacked underlying investments. Dishonesty was an additional ingredient of the conspiracy allegation. On the admitted offences and the prosecution opening, the judge was entitled to find that the appellant knew the promises of exceptional returns were unreal.

3. The comparison with R v Powell and Hinkson [2008] EWCA Crim 1214 did not establish excessive punishment. Those offenders were underlings, whereas this appellant managed the United Kingdom operation and was positioned to know that investors’ money was not being invested. The earlier appeal decided only whether its 15-month sentences were manifestly excessive; it did not determine that a higher sentence would be unreasonable for a more culpable offender.

4. The appellant’s age, health, caring responsibilities, financial loss and delay carried limited weight given his necessary role in a scheme that harmed investors. The later £10,000 transfer was a distinct dishonest episode, committed after he knew of official intervention and at least suspected that others’ investments were at risk. It properly attracted a consecutive sentence.

5. The total sentence was proportionate. Subverting investment controls exposes investors and the public to serious danger. The appellant’s greed-driven conduct and absence of remorse supported immediate custody.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence: [2009] EWCA Crim 515.
• Crown Court at Hull: following guilty pleas, imposed 15 months’ imprisonment for carrying on a regulated activity without authorisation and nine months’ imprisonment consecutively for transferring criminal property, with an eight-year directors’ disqualification.