Castillo, R. v

Imprisonment in default of a confiscation order is intended to secure payment and deprive the offender of criminal assets. It is not a further punitive sentence. The court must consider all the circumstances, without seeking an arithmetical correlation between the amount ordered and the default term or applying totality to the substantive sentence and default term.

Within the statutory band, the maximum order and maximum default term remain relevant. Proportionality is especially important in the open-ended highest band, although it does not create a tariff. It operates to prevent a capricious result while preserving the effectiveness of asset recovery.

The appellant was convicted at Southwark Crown Court of conspiracy to cheat the public revenue arising from a large carousel VAT fraud. He received a 10-year custodial sentence.

In confiscation proceedings, the judge found that the appellant had retained and concealed at least £3 million of criminal assets. A confiscation order for that sum was made under the Criminal Justice Act 1988, with a consecutive 10-year term of imprisonment in default.

The appellant appealed against the default term alone. The central issue was whether the statutory maximum was proportionate and appropriate for a £3 million order in the circumstances found.

1. The appeal was allowed in part. The Court quashed the 10-year default term and substituted a consecutive term of nine years’ imprisonment.

2. Under section 75(1) of the Criminal Justice Act 1988, a confiscation order was to have effect as a Crown Court fine. The applicable default-imprisonment scale therefore permitted a maximum of 10 years for an order exceeding £1 million.

3. The Court reaffirmed the guidance derived from the earlier authorities. The sentencing court must consider all the circumstances. Its primary purpose is to secure payment of the order, not to impose retributive punishment. It must not mechanically match the level of the order to a position within the statutory default-term band, and must disregard totality between the substantive sentence and the default term.

   The court should nevertheless have regard to the statutory maxima. It must also respect proportionality, particularly in the highest band, where the same 10-year maximum applies to an order just above £1 million and to an order of vastly greater value.

4. Proportionality in this setting was weaker than in punitive sentencing. It did not prescribe a tariff or determine the proper term. Its role was to correct an otherwise capricious or unjust result while maintaining the effectiveness of asset recovery.

5. The appellant had deliberately concealed £3 million, apparently outside the United Kingdom, and could readily regain access to it after returning to Spain. Those circumstances strongly supported a severe default term. However, the order was only about 30 per cent higher than the £2,137,500 order in Whiteway-Wilkinson, [2010] EWCA Crim. 35, where 10 years had been reduced to eight. A nine-year term properly reflected both the concealed assets and the limited proportionality adjustment required.

• Court of Appeal (Criminal Division): Allowed the appeal to the limited extent of substituting a nine-year default term for the 10-year term: [2011] EWCA Crim 3173.

• Southwark Crown Court: The appellant was convicted of conspiracy to cheat the public revenue in July 2009 and sentenced to 10 years’ imprisonment. In May 2011, the court made a £3 million confiscation order under the Criminal Justice Act 1988, with 10 years’ consecutive imprisonment in default.