Cooper & Ors, R. v

Factual and Procedural Background

The opinion addresses appeals arising from sentences imposed on three appellants convicted of offences contrary to the Proceeds of Crime Act 2002 (the "2002 Act") alongside other substantive offences. The appeals focus on the application of the totality principle in sentencing, particularly whether sentences for 2002 Act offences should run concurrently or consecutively with sentences for the underlying offences that generated the criminal property.

The appellants, hereafter referred to as Appellant A, Appellant B, and Appellant C, were sentenced for various offences including cheating the public revenue, drug supply and possession, fraud-related offences, and offences involving the possession and transfer of criminal property. Each appellant was granted leave to appeal on grounds including the appropriateness of consecutive sentencing for the 2002 Act offences.

The court grouped these cases to provide guidance on the sentencing approach where 2002 Act offences arise alongside substantive offences producing criminal property. The court considered existing guidelines and case law, and applied these to the facts of each appeal.

Legal Issues Presented

1. How should the principle of totality be applied when sentencing a defendant for an offence under the Proceeds of Crime Act 2002 in respect of criminal benefit arising from offences for which the defendant is also sentenced?
2. Under what circumstances should sentences for 2002 Act offences be imposed concurrently or consecutively with sentences for the underlying substantive offences?
3. What factors determine whether the 2002 Act offence involves additional culpability or harm beyond the primary offence?
4. Is the imposition of consecutive sentences for 2002 Act offences compatible with the interests of justice and sentencing guidelines?

Arguments of the Parties

Appellant B's Arguments

• The sentencing judge erred in applying the totality principle by imposing a consecutive sentence for the possession of criminal property offence.
• The starting point of six years' imprisonment for the drugs supply offences was excessive, given the appellant's role and harm category.
• The judge failed to give sufficient credit for personal mitigation, including the appellant's good character and drug addiction.
• The overall sentence was manifestly excessive, approaching the minimum term for a third conviction under the Sentencing Act 2020.

Appellant A's Arguments

• The starting point for the tax offences should have been no more than three and a half years.
• The sentence for the 2002 Act offence should not have been consecutive to the tax offence sentences.
• The business was legitimate and not part of a fraudulent scheme from the outset.
• The judge applied an incorrect guideline table for the tax offences.

Appellant C's Arguments

• The total sentence of thirteen years and four months was manifestly excessive.
• The six-year consecutive sentence for the transfer of criminal property offence was disproportionate given the overlap in criminality with the substantive offences.
• The use of cryptocurrency wallets did not increase seriousness beyond ordinary currency accounts.
• The total sentence exceeded the statutory maximum for the underlying offences.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework under the Proceeds of Crime Act 2002, including definitions of criminal property and relevant offences under sections 327 and 329. It emphasized the maximum custodial sentences and relevant Sentencing Council guidelines, including the assessment of harm and culpability.

The court reiterated the principle of totality under section 231(2) of the Sentencing Act 2020 and the requirement to follow sentencing guidelines unless contrary to justice. The recent overarching guideline on totality was referenced, highlighting that sentences may be concurrent, consecutive, or a mixture, with appropriate adjustments to reflect overall criminality.

Drawing on prior case law, the court explained a spectrum approach: where the 2002 Act offence adds no additional culpability or harm, concurrent sentences without upward adjustment are appropriate. Where it does add culpability or harm, additional penalties are warranted, either via concurrent sentences with upward adjustment or consecutive sentences with downward adjustment.

The court identified factors indicating additional culpability/harm, such as different time periods, different criminal property, increased difficulty in detection, increased risk to victims, additional victims, additional planning or sophistication, and facilitation of continued offending.

Applying these principles to each appellant, the court found:

• For Appellant B, the 2002 Act offence related to cash proceeds from drug supply separate from the drugs underlying the primary sentence, justifying a consecutive sentence. The overall sentence was not manifestly excessive.
• For Appellant A, the 2002 Act offence involved the calculated purchase of a substantial property with proceeds of fraudulent VAT evasion, increasing culpability and harm. The imposition of a consecutive sentence with reduction for totality was appropriate and not excessive.
• For Appellant C, the offences involved a sophisticated fraud facilitated by a website and cryptocurrency transfers. The 2002 Act offences involved additional culpability beyond the substantive fraud offences, justifying consecutive sentencing. The total sentence, although substantial, was merited and not manifestly excessive.

The court rejected arguments that the sentences were manifestly excessive or that the total sentences exceeded statutory maxima unjustifiably, emphasizing the distinct and additional criminality involved in the 2002 Act offences.

Holding and Implications

The court DISMISSED all appeals against sentence.

The court confirmed the established principles governing sentencing where offences under the Proceeds of Crime Act 2002 arise alongside substantive offences. It clarified that sentences for 2002 Act offences should be concurrent where no additional culpability or harm exists, but consecutive or adjusted sentences are appropriate where additional culpability or harm is demonstrated.

This decision reinforces the application of the totality principle and existing sentencing guidelines without altering the law, providing consolidated guidance for sentencing in cases involving criminal property offences. The direct effect is the upholding of the sentences imposed on the appellants, with no new precedent beyond clarification and reaffirmation of prior principles.