R v Claude Greaves and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jack |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWCA Crim 709 |
| Docket Number | Case No: 200902925/02587/02930 D4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 March 2010 |
[2010] EWCA Crim 709
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
Before: Lord Justice Elias
Mr Justice Jack
and
HHJ Radford
(sitting as a Judge of The Court of Appeal Criminal Division)
His Honour Jujdge Testar
Case No: 200902925/02587/02930 D4
T20077772/T20087061
Mr Brian Lett QC (instructed by Bark & Co.)) for Claude Clifford Greaves
Mr Philip Hackett QC (instructed by Pannone) for Fraser Jenkins
Messrs. Stephen Batten QC and Tom Allen (instructed by Irwin Mitchell) for Henrik Botcher
Messrs. Peter James Stage and Gareth Underhill (instructed by Fraud Prosecution Division, Crown Prosecution Service Headquarters) for the Respondent
Hearing date: 25 March 2010
Mr Justice Jack:
A. Introduction
These appeals against sentence passed at the Crown Court by His Honour Judge Tester at Southwark on 27 April 2009 have the leave of the full court given on 15 January of this year. They arise from a scheme to sell to private investors in the United Kingdom shares which were wholly unsuitable to them and unsaleable once purchased. The first shares were sold in an unquoted company named Pantera Oil & Gas PLC. Later shares were sold in companies quoted solely on AIM, the alternative investment market. That is a highly specialist field. There were 580 investors who paid a total of some £2.4 million. Of that £238,000 was located and restrained in this country and £310,000 in Hong Kong. The scheme involved cold calling investors from call centres outside the United Kingdom. The principal one was in Barcelona. About half the investors received share certificates.
The three appellants and others initially faced a single count of conspiracy to defraud. At an early stage in the proceedings in the Crown Court, a count of money laundering contrary to section 238 of the Proceeds of Crime Act 2002 was added. A short period before the trial there were negotiations between counsel. The outcome was the addition to the indictment of a count of conspiracy to contravene sections 19 and 21 of the Financial Services and Markets Act 2000. Botcher and Jenkins both then pleaded guilty to that count and to the money laundering count.
Section 19 of the Financial Services and Markets Act 2000 provides that only authorised persons may carry on a regulated activity in the United Kingdom. The sale of the shares was a regulated activity and was not being carried on by authorised persons. Section 21 of the Act provides that persons who are not authorised must not in the course of a business communicate an invitation to engage in investment activity unless the invitation has been approved by an authorised person. The salesmen were not authorised and their communications were not approved by an authorised person. Sections 23 and 25 make breach of sections 19 and 21 punishable with up to two years imprisonment. Applying section 3 of the Criminal Law Act 1977 the maximum sentence for conspiracy to contravene these sections is the maximum provided by the sections themselves. In contrast section 328 of the Proceeds of Crime Act 2003 carries 14 years.
Botcher and Jenkins had both pleaded not guilty to the original count of conspiracy to defraud contrary to common law. Their pleas were accepted by the Crown. Botcher was sentenced to 12 months on the conspiracy to contravene sections 19 and 21, and Jenkins to 7 months. On the section 328 offence – the laundering offence – Botcher was given 33 months and Jenkins 14 months. Those sentences were consecutive to the conspiracy sentences, making a total for Botcher of 45 months, and for Jenkins of 21 months.
Greaves stood trial. He was convicted following trial on two conspiracy counts, one being a conspiracy to breach section 19 and one being a conspiracy to breach section 21. The original single count covering both sections had been divided in to two separate counts for the purpose of his trial. He was also convicted on the count relating to section 328 – the money laundering. He was sentenced to 18 months on each of the conspiracy counts relating to sections 19 and 21, and to 4 years on the section 328 count. The two 18 months sentences were concurrent to each other but consecutive to the 4 years making a total of 5 years 6 months. Greaves was acquitted on the count of conspiracy to defraud contrary to common law. So it was not established against any defendant that the scheme was a fraudulent scheme.
The primary submission made on behalf of the appellants is that the conduct which constituted the money laundering offences was part of the conduct encompassed within the conspiracy offences and as such should not have attracted any sentences which added to the sentences on the conspiracy offences. In short, the conduct which constituted the money laundering had been punished by the sentences on the conspiracies. Therefore, it was submitted, there should have been either no separate penalties for the money laundering offences, or concurrent sentences which did not exceed those on the conspiracies. So the maximum sentences for the section 21 and section 22 conspiracies set the maximum for concurrent sentences on the money laundering.
B. The authorities
We were referred to a number of authorities which touch on the relationship between what we can call the primary offence and subsequent money laundering. One situation in which this commonly arises is where the primary offence is drug dealing. The equivalent there to the situation here is where the drug dealer is also convicted of laundering the proceeds of his own drug dealing. The position is simpler where the drug dealer and the launderer are two different persons.
In Greenwood [1995] 16 Cars 614 the court reduced a sentence on a launderer because it was higher than that given to the drug dealer, saying that the former was nearly as bad but not quite as bad as the latter.
In Everson [2002] 1 Cr App R(S) 132 the appellants were concerned in a money laundering scheme centred on a bureau de change. They pleaded guilty to conspiracy to convert property and remove it from the jurisdiction knowing or inspecting that it represented the proceeds of criminal conduct. They exchanged used sterling notes for foreign currency, bank drafts or electronic transfers. The money was the proceeds of cigarette smuggling, which carried a maximum sentence of 7 years. As to that, this court drew attention to the possibility of a charge of conspiracy to cheat to ensure that a sufficient sentencing option was available, as had been suggested in Dosanjh [1999] 1 Cr App R(S) 107. As to the sentences for laundering with which it was concerned the court stated:
“We do not consider to be impressive, in the circumstances of this case, the argument of counsel that the effective maximum available here in the case of a principal was that of seven years and that should, as it were, operate to govern the appropriate sentence available in the case of these appellants. We say that because here the charge was that of conspiracy. It was a conspiracy which was alleged to have lasted for a considerable period of time. Moreover, the conspiracy was in the context of money laundering and did not relate to just one particular incident of evasion of duty.”
In Basra [2002] 2 Cars 100 it was said that money laundering was a stand alone offence where the constituents might be many and varied. It depended in part on the launderer's knowledge. The court stated that the offences of drug dealing and money laundering were different and could attract different sentences depending on the different facts of each individual case.
In Brown [2006] EWCA Crim 1996, [2007] 1 Cr. App. R.(S) 77, this court was asked to give general guidance as to the relationship between drug dealing offences and laundering offences. It declined. The defendant had faced charges of conspiracy to supply cocaine and heroin but they were not proceeded with. The sentence was reduced on the ground that the money laundering offences to which the defendant had pleaded guilty were qualitatively different at least in part from the drug offences that underlay them.
In Bell [2008] EWCA Crim 3211 the appellant had received 4 1/2 years for conspiracy to produce cannabis and 30 months consecutive for conspiracy to possess criminal property. He had used his family to assist in laundering his cannabis proceeds. This court said:
“Mr Cooke, representing the Crown, puts forward this proposition: that where the gravamen of the money laundering charge is different and adds to the conspiracy counts related to the production and supply of drugs, there is nothing wrong in principle in having consecutive sentences. He accepts, of courts that the sentences on counts 1 and 2 are properly concurrent but, he submits, count 4 extends the criminality and justifies the judge in passing the consecutive sentence.
Two matters he refers to in particular which constitute the different gravamen, as he put it, are: first, the ostentatious use of the wealth that the appellant demonstrated in his use of funds and the attitude demonstrated in the letter he wrote which sought to glamorise the nature of the criminal activity that he was taking part in; and secondly, counsel says (and this we think is a more significant argument) there is the defendant's cynical use of other people. He used close members of his own family and involved them in his activities, and in particular in the use he made of them in benefiting from the...
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