| CRIME — Sentence — Confiscation — Benefit — Excise duty fraud — Proprietor of business and employee co-conspirators — Employee paid to participate — Whether benefit amount employee paid or amount of duty evaded — Customs and Excise Management Act 1979, s 170(2) — Proceeds of Crime Act 2002, ss 6-7
R v Sivaraman; [2008] WLR (D) 256
Court of Appeal : Toulson LJ, Jack J and the Recorder of Hull: 24 July 2008
There was no rule of law to the effect that, for the purposes of the Proceeds of Crime Act 2002, the amount of the benefit to each of the co-conspirators to a fraud must be taken as the whole amount of the loss attributable to the fraud: the amount of the benefit might vary as between the co-conspirators, and was to be determined on a common sense appreciation of the particular facts of the case.
The Court of Appeal, Criminal Division so held when allowing an appeal by the defendant, Mylupillai Sivaraman, against a confiscation order made by the Crown Court at Lincoln on 27 January 2007 in the sum of £59,365, quashing that order and substituting one in the sum of £15,000 The confiscation order had been made consequent on the defendant’s conviction on 13 January 2006 for conspiracy to contravene s 170(2) Customs and Excise Management Act 1979.
TOULSON LJ, giving the judgment of the court, said that the conviction related to an excise duty fraud by which so-called red diesel was bought, changed, by the removal of dye, to derv, a fuel subject to a higher rate of duty, and sold. The defendant’s co-conspirator was, through a company, the proprietor of the service station at which the fraud was carried out. The defendant was initially a cashier at, later the manager of, the service station. The bunkering operation, in which the fuel was transformed, was carried out under the defendant’s control. He was paid £15,000 for his participation in the fraud. The evaded duty was £128,520.The issue was whether the former or the latter figure was to be taken as the amount of the benefit for the purposes of the Proceeds of Crime Act 2002. The trial judge had, with misgivings, held that he was constrained by law to determine that it was the amount of the evaded duty. The law had subsequently been clarified by the House of Lords in R v May [2008] 2 WLR 1131, Jennings v Crown Prosecution Service [2008] 2 WLR 1148 and R v Green [2008] 2 WLR 1154. Those authorities did not establish that the amount of the benefit to each of the co-conspirators to a fraud was to be taken as the whole amount of the loss attributable to the fraud, and there was no such rule of law. Consistently with Lord Bingham of Cornhill’s speech in R v May the amount of the benefit might vary as between co-conspirators, and was to be determined on a common sense appreciation of the particular facts of the case. The defendant was not a joint purchase of the fuel, but was just an employee. The trial Judge had taken the common sense view that the defendant’s benefit was what he received (£15,000), and it would be wrong for the court to make a different finding. |
