Mills, R v, Court of Appeal - Criminal Division, May 01, 2018, [2018] EWCA Crim 944

Resolution Date:May 01, 2018
Issuing Organization:Criminal Division
Actores:Mills, R v
 
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Case No: 2017 02817 B5

Neutral Citation Number: [2018] EWCA Crim 944

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM

HH Judge Rafferty QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/05/2018

Before:

LORD JUSTICE SIMON

MR JUSTICE GOOSE

and

HER HONOUR JUDGE TAYTON QC

(siting as a Judge of the Court of Appeal Criminal Division)

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Between:

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Mr Richard Sutton QC for the prosecution

Mr Christopher Tehrani QC for the respondent

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JudgmentLord Justice Simon:

Introduction

  1. This appeal raises the question whether, if the prosecution are discontented with the terms of a default order in confiscation proceedings, the Court of Appeal (Criminal Division) has jurisdiction to determine a challenge to that order.

  2. On 26 September 2013, at Nottingham Crown Court (before HHJ Hamilton), the respondent pleaded guilty to offences of conspiracy to defraud (count 1), conspiracy to convert criminal property (count 2) and concealing criminal property (count 3). He was sentenced to a term of 7 years imprisonment on each count, to be served concurrently.

  3. On 23 May 2017, in confiscation proceedings under the Proceeds of Crime Act 2002 (`POCA 2002'), before HHJ Rafferty QC (`the Judge'), a confiscation order was made against the respondent. The Court decided that he had a criminal lifestyle as a result of his general criminal conduct and assessed the benefit figure at £8,922,378. The recoverable amount was assessed as £657,197.33. This included £500,000.00 of hidden assets. The confiscation order was to be paid by 22 August 2017 and, in default of payment, the respondent was ordered to serve a term of 18 months imprisonment.

  4. On 6 July 2017, at a hearing pursuant to Section 155 of the Powers of Criminal Courts (Sentencing) Act, the Judge amended the recoverable amount to a sum of £661,027, but declined to reconsider the length of the default term.

  5. The prosecution applied for leave to appeal against the terms of the default order. Its case was that the default period should have been for a considerably longer period: of the order of 5 to 7 years.

  6. The application has been referred to the full court by the Registrar of Criminal Appeals.

  7. Since the issues are confined, the background facts can be set out in outline.

  8. The crimes constituted sophisticated `boiler room' frauds between 27 November 2007 and 26 September 2013. They were organised in and conducted from Thailand where the respondent was resident at the time. The fraud involved cold callers contacting investors in a variety of countries to persuade them to invest in shares and commodities. Investors were directed to websites which appeared genuine. They could log-in to view their apparent trading accounts which showed false figures which were used to persuade them to increase their investment. In fact, none of their money was either invested or reinvested.

  9. On 23 October 2012, prior to his plea, a restraining order was made against the respondent prohibiting him from dealing with his assets, and requiring the repatriation of any assets held outside the jurisdiction within 21 days. On or around 25 January 2013 he served a witness statement detailing bank accounts held abroad which he claimed he was unable to access. In fact, he had both online access to bank accounts and the capacity to repatriate assets. As such, he was held to be in contempt of court on 15 July 2013 for failing to comply with the restraining order. As the respondent claimed he was making attempts to comply with the restraining order, the contempt application was adjourned.

  10. On 10 September 2013, the prosecution became aware that the respondent had withdrawn approximately £14,350 from an account held at HSBC in Hong Kong in breach of the restraint order. The hearing of a second contempt application was postponed until after the conclusion of the confiscation proceedings.

  11. A further discovery was made shortly before the confiscation hearing on 8 May 2017. A company in which the respondent held 587 shares, Dragon Oil, had been taken over by Emirates Oil Company. The shareholders, including the respondent, had been offered £8 per share. He had accepted that offer and been sent a cheque for £4,696. He failed to notify the police at the time, although the money was paid into a restrained account after the issue was raised by the prosecution.

  12. At the confiscation hearing in May 2017, the respondent resiled from an earlier basis of plea. First, he said that he had not played a leading role in the fraud but simply acted in an administrative role for which he was paid around £200,000. Secondly, he said that he had only been involved from late 2005 or early...

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