Evans, R. v

Under the Fraud, Bribery and Money Laundering Definitive Guideline, the harm caused by the underlying criminality may require an upward adjustment of the harm assessment for money laundering. This is an upward move to the next category range, rather than a sideways move within the original category.

Where cash transfers are integral to a sophisticated operation supplying class A drugs, immediate custody may be justified even if the offender performed a limited role, has low assessed reoffending risk, and is otherwise suitable for a community order. Continuing denial of offending may prevent the court from finding a realistic prospect of rehabilitation sufficient to justify suspension.

The three applicants were convicted at Preston Crown Court of transferring criminal property, contrary to section 327(1)(d) of the Proceeds of Crime Act 2002. Each had transferred cash arising from a wider, sophisticated conspiracy to supply substantial quantities of class A drugs.

Evans transferred £5,000 and received four months’ immediate imprisonment. Johnstone transferred £11,200 and Jackson transferred cash forming part of a larger collection; each received eight months’ immediate imprisonment. All three applied for leave to appeal their sentences, contending that custody was not warranted or that their terms should have been suspended.

The central issues were the correct application of the harm adjustment in the applicable definitive guideline and whether the immediate sentences were manifestly excessive.

1. The applications for leave to appeal sentence were refused. The sentences were not arguably manifestly excessive.

2. The court construed the definitive guideline’s direction to consider harm associated with the underlying offence. Where money laundering is an integral component of more serious criminality, that direction permits an upward adjustment to the next harm category range. It does not merely permit a sideways adjustment between culpability subcategories within the original harm category.

3. The applicants’ transfers were essential to the functioning of a wider and sophisticated class A drug-supply operation. The seriousness of that underlying criminality therefore warranted the upward adjustment. In Evans’s case, the judge was entitled to move from Category 6C to Category 5C, with a custodial starting point of 26 weeks and a range extending to one year.

4. The trial judge was well placed to assess the conspiracy and the applicants’ roles. The sums involved, their derivation from class A drug supply, and the trusted but low-profile roles played by the applicants justified immediate imprisonment. Four months for Evans and eight months each for Johnstone and Jackson were within the proper sentencing discretion.

5. Suspension was also properly refused. Although there was mitigation and low assessed risk of reoffending, the judge could conclude that appropriate punishment required immediate custody. The applicants’ continuing denial of guilt also meant that the judge could not be satisfied that there was a realistic prospect of rehabilitation supporting suspension.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 606, refused the three applications for leave to appeal sentence.

• Crown Court at Preston: On 11 February 2019, convicted the applicants of transferring criminal property. On 14 March 2019, imposed immediate custodial sentences of four months on Evans and eight months on each of Johnstone and Jackson.