Thomas LJ discussed the sentence to be imposed on default by the defendant in payment of a sum due under a confiscation order: ‘We turn therefore to the authorities which have been put before us in relation to the short issue. They are R v Szrajber (1994) 15 Cr.App.R (S) 821 , R v French (1996) 16 Cr.App.R (S) 841 , R v Qema [2006] EWCA Crim. 2806 , R v Howard [2007] EWCA Crim. 1489 and R v Liscott [2007] EWCA Crim. 1706 . It is clear from those authorities that the court has a discretion up to the maximum period in the band. It would, taking as an example the band we are concerned with, namely the band of between andpound;250,000 and andpound;1 million, at a sentence between the maximum amount and the top of the previous band, namely three years. In fixing the precise length of the sentence, the court has to consider all the circumstances and is not bound to follow an arithmetical approach. In this case, as the sum is within a few thousand of the midway point, that clearly indicates that it is not right to fix the sentence merely in the midway point, namely as four years. The court must have particular regard to the purpose of the imposition of a period of imprisonment in default, that is to say to secure payment of the amount that the court has ordered to be paid. This is because the overriding purpose of the legislation is to ensure that those who benefit from such crimes do not retain those benefits. The power to imprison in default is given to ensuring or obtaining as far as possible the co-operation of the defendant in complying with the order. It is to make clear to him that he has nothing to gain by non-compliance. It is particularly important to have regard to the judgment of Hobhouse LJ in French to that effect at page 844 of the report. Although a court must take into account intransigence, it seems to us the court must also take into account, in a case where the order is not for the maximum, what that maximum is.’
and ‘We would add one further point. There is some suggestion that the judge should have had regard to the overall totality of the sentence of 13 years imposed for the substantive offence and the period to be imposed in default. That argument was not pursued before us as it was accepted that it was wrong in principle to take into account in fixing the default term the previous sentence. We consider that that concession was rightly made, as the purpose of the sentence of imprisonment was to punish him for his drug dealing; the purpose of the sentence for confiscation was the purpose we have set out, namely to ensure compliance with the order of confiscation. The sentences have completely different purposes and therefore it was right in principle to concede that an argument on totality could not properly be advanced.’
Thomas LJ
[2009] EWCA Crim 344
Bailii
England and Wales
Citing:
Cited – Regina v French CACD 1996
Hobhouse J discussed the sentencing in default of payment of a sum due under a confiscation order: ‘It is to be borne in mind that there is a scheme under the Act whereby orders may be reviewed and whereby the period in default falls to be reduced . .
Cited – Regina v Szrajber CACD 1994
Latham J discussed the periods of sentence to be imposed in default of payment of a confiscation order: ‘The use of the words ‘the maximum period’ [in the statute] makes it quite plain that it was intended that these should indeed be maximum . .
Cited by:
Cited – Pigott v Regina CACD 9-Nov-2009
The defendant appealed against a substantial confiscation order after his conviction for cheating the public revenue. He said that the judge had been biased or had shown the appearance of bias against him. He had given some assistance to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2021; Ref: scu.317861
