R v Steven Cooper & Ors

When sentencing both a substantive offence and a money-laundering offence under the Proceeds of Crime Act 2002, the court must apply totality. If the money-laundering offence adds no culpability or harm beyond the substantive offending, it attracts no additional penalty and the sentences should be concurrent without uplift.

If it adds distinct culpability or harm, the overall sentence must reflect that additional criminality. The judge may achieve a just and proportionate result through concurrent sentences with an uplift, consecutive sentences with an appropriate reduction, or a combination. Separate but connected offences may justify consecutive terms where concurrency would fail to reflect their combined criminality, even if the resulting total exceeds the maximum for one count.

Three otherwise unrelated sentence appeals raised the proper approach to totality where an offender was sentenced both for substantive offending and for dealing with its proceeds under the Proceeds of Crime Act 2002.

Cooper received consecutive terms for drug-supply offences and possession of cash representing proceeds of other drug supplies. Park received a consecutive term for transferring criminal property through the purchase of property using unpaid VAT proceeds. Fletcher, the operator of a website enabling large-scale fraud, received a consecutive term for transferring cryptocurrency proceeds.

Each appellant contended that the overall sentence was wrong in principle or manifestly excessive. Fletcher’s application for leave was referred to the Full Court, which granted leave. The central issue was whether the money-laundering offences involved additional criminality requiring a separate penalty and whether the resulting totals were proportionate.

1. All three appeals were dismissed. The court granted Fletcher leave to appeal, but held that none of the challenged sentences was wrong in principle or manifestly excessive.

2. The court applied the totality principle. A sentence for a money-laundering offence under the Proceeds of Crime Act 2002 must not duplicate culpability and harm already marked by the sentence for the substantive offence. If it adds nothing, there should be no further penalty. If it adds culpability or harm, an additional penalty is required, structured through concurrent sentences with an uplift, consecutive sentences with a totality reduction, or both.

3. The question is fact-sensitive. Relevant features include a different period of offending, additional criminal property, increased difficulty of detection or recovery, further victims, greater planning or sophistication, and conduct enabling further crime. Mere continued possession of the proceeds of the primary offence will ordinarily add no further culpability or harm.

4. In Cooper’s case, the seized cash was the proceeds of other drug supplies, not of the unsold drugs for which he was sentenced. It was therefore additional offending. A consecutive six-month term was justified, and the overall five-year sentence was not excessive.

5. In Park’s case, using the proceeds of a sustained Revenue fraud to acquire a substantial property added culpability. It both helped continue the business and made recovery more difficult. The judge was entitled to impose a consecutive term reduced for totality, producing a proportionate six-year total.

6. In Fletcher’s case, the substantive counts were separate although closely connected, and concurrent terms would not adequately reflect their combined gravity. The acquisition and anonymous transfer of cryptocurrency proceeds added substantial culpability by facilitating receipt, concealment, tracing difficulties and distribution of fraud proceeds. The exceptional scale of technology-enabled fraud, including the number of persons harmed or put at risk and wider economic harm, justified the total sentence of 13 years and four months. Totality had been adequately addressed by making one substantive count concurrent; no further reduction of the consecutive term was required.

• Court of Appeal (Criminal Division): By [2023] EWCA Crim 945, dismissed Cooper’s and Park’s sentence appeals and granted, then dismissed, Fletcher’s sentence appeal.
• Crown Court at Woolwich: Cooper was sentenced for drug-supply offences and possession of criminal property.
• Crown Court at Reading: Park was sentenced for cheating the Revenue and transferring criminal property.
• Crown Court at Southwark: Fletcher was sentenced for fraud-related offences and offences involving criminal property.