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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Roddy, R. v [2010] EWCA Crim 671 (23 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/671.html Cite as: [2010] 2 Cr App Rep (S) 107, [2010] 2 Cr App R (S) 107, [2010] EWCA Crim 671

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd March 2010

1. MR JUSTICE NICOL: On 29th September 2009 at Bolton Crown Court the appellant was sentenced to 20 months' imprisonment for contempt of court by Mr Recorder Osborne. He appeals against sentence pursuant to the Administration of Justice Act 1960, section 13. He did not need leave of the court to do so.
2. The background to the offence was this. In October 2006 the police carried out a search of 3 Stanley Drive, Manchester, and found a large quantity of drugs. 3 Stanley Drive was owned by the appellant and his partner, Diana Greenwood. They were arrested but later released on bail. In November 2006 a further search of 3 Stanley Drive was conducted. More drugs were found. The appellant was again arrested. Again he was granted bail.
3. On 11th January 2007 His Honour Judge Clayson sitting at Bolton Crown Court made a restraining order under the Proceeds of Crime Act 2002. Among other things this prohibited the appellant from disposing of, dealing with or diminishing the value of any of his assets. As is common, the order then gave a non-exhaustive list of the property to which it particularly applied. This included "the property known as 3 Stanley Drive, Whitfield, Manchester, or the net sale money after payment of any mortgages if it has been sold." The order was apparently served on the appellant on the same day. Six days later the appellant sold 3 Stanley Drive for £79,804.35. He received a cheque for this sum which he then cashed with a pawn broker in Manchester. The pawn broker charged a commission but the balance was taken by the appellant to the Republic of Ireland where he stayed with Miss Greenwood until he returned to England under a false name. He was arrested in September 2007.
4. He was tried for various drug offences. In the course of his trial he accepted that he had sold the property in breach of the restraining order. He said that he had done so in order to pay off the debts which Miss Greenwood owed to her drug suppliers. He was convicted by the jury and on 19th February 2008 he was sentenced by Recorder Osborne to 7 years' imprisonment. The judge expressly said that the sentence had not been increased because of the breach of the restraint order. However, he did comment that he rejected the appellant's account of using the proceeds of sale for the benevolent purpose of paying off Miss Greenwood's violent drug suppliers. He noted that Miss Greenwood had given evidence that her debts were much smaller than the appellant had claimed and they were not a source of great concern to her.
5. Proceedings then took place to assess the appellant's proceeds of crime. These finally were completed on 28th and 29th September 2009. A benefit figure of £235,961 was agreed. At the conclusion of the hearing Recorder Osborne assessed the realisable assets at £169,135.25. That included the proceeds of sale of 3 Stanley Drive. An order was made that the appellant pay the latter sum and in default serve 3 years' imprisonment.
6. The Recorder then dealt with the contempt of court matter. He said that the appellant had committed a gross and serious contempt to defeat the proper effect of the restraint order which had only just been served on him. It was a gross defiance of a court order and unless punished appropriately it would bring the administration of justice into disrepute. The Recorder recognised that the maximum sentence for contempt is 2 years' imprisonment. He acknowledged that the appellant had pleaded guilty, but he thought the mitigating effect of his admission was much reduced by its timing and manner. He had spun an untrue story about the reason for making off with the proceeds of sale. The jury had disbelieved him. The sentence of 20 months would be served consecutively to the current term imposed for the drug offences. This penalty was not intended to duplicate or replace any default term which the appellant might be required to serve if the confiscation order was not paid.
7. On the appellant's behalf Miss Mottram submits that the judge took too high a starting point, did not give adequate credit for the appellant's plea and failed to have proper regard to the principle of totality.
8. As for the starting point, she has referred us to R v Adewunmi [2008] EWCA Crim 71. There, too, the appellant had been the subject of a restraint order. As well as prohibiting any disposal or dealing with his assets, the order positively required him to repatriate to the UK certain funds which he and his wife held in foreign bank accounts. In breach of the order the appellant had not repatriated those funds. On the contrary he had moved them from accounts in the USA to Cyprus. The appellant admitted his breach of the order. The sentencing judge had commented that there had been several quite deliberate breaches of the court's order to prevent retrieval of the funds which had been dishonestly taken. The Court of Appeal characterised the appellant's dealings as "cunning, sophisticated and sustained." It noted that punishments for contempt had a penal and a coercive element. Both were present in the case before the court. The Court of Appeal agreed that a deterrent element was necessary. It agreed that the judge was entitled to take a very serious view of the matter but 18 months had been too long. Initially it was minded to reduce the sentence to 15 months but was persuaded to cut it further to 12 months because the appellant had taken some steps to bring the money back to the UK.
9. We agree that this is a helpful authority. Of course the facts of two cases are never exactly the same. Nonetheless, Adewunmi is useful because it shows that even when a breach of a restraining order has been deliberate, cunning, sophisticated and sustained, 18 months was too great a punishment on an admission of guilt.
10. In the present case the Recorder was influenced by the false story which the appellant had told as to why he had sold 3 Stanley Drive. Of course it is the case that credit for a guilty plea may be reduced if it is accompanied by mitigation, which is disbelieved after a Newton hearing. That is partly because it raises a question as to the genuineness of any remorse which might otherwise be assumed to have accompanied a plea of guilty. Perhaps more importantly, part of the reason why a guilty plea attracts a reduction in sentence is because it will lead to a saving in the court's time and other resources. If time has to be taken by a Newton hearing that benefit is correspondingly diminished.
11. Here though, the appellant's false story had been given in the course of his trial on the drugs charges. The sentence which he was given on those counts was 7 years. The Recorder said that if he had pleaded guilty, the sentence would have been of the order of 5 years. Thus the 7-year sentence already took account of the fact that there had been a fully fought hearing, in the course of which the appellant had given his false version of why he had sold Stanley Drive. It would, we think, be wrong in principle to hold the same matters against the appellant when it came to sentencing him for the contempt of court.
12. The Recorder was quite right to say that this was a flagrant contempt of court. He was quite right to say that a deterrent sentence was needed to mark the fact that the court will not tolerate a frustration of the administration of justice. However, as in Adewunmi, we consider that those aims can be achieved by a somewhat lower sentence than the Recorder imposed. Having regard to the fact that the appellant admitted his breach, and so far as we know this was at the first reasonable opportunity, a sentence of 15 months would have been appropriate.
13. Miss Mottram realistically accepts that this contempt was quite separate from the drugs charges. The Recorder was perfectly entitled to impose this sentence consecutively to the imprisonment for those offences. Subject to what we have already said, we do not think that a consecutive sentence offends the principle of totality. The sentence for contempt of court would also be quite separate from any default sentence which the appellant is required to serve by reason of noncompliance with the confiscation order.
14. Accordingly we will allow the appeal, quash the sentence imposed by the Recorder and substitute a sentence of 15 months' imprisonment to run consecutively to the 7-year term imposed for drugs offences.