Enforcement Notice: Offence of non-compliance: setting fines and confiscation orders

Regina v Ma Kelly’s Estates Limited, Paul Anthony Kelly

[2018] EWCA Crim 2722

3 On 7th September 2017 fines were imposed upon both the applicant and the appellant. The applicant was fined £90,000 and, in addition, was ordered to pay £21,080 towards the costs of the prosecution. The court also imposed a confiscation order made under the Proceeds of Crime Act 2002 in the sum of £225,000, which figure had been agreed between the parties following negotiations on the date of sentence. The appellant company was fined £56,000. By agreement, the confiscation proceedings that had been initiated as against the company were dismissed.

5 The appellant company appeals against sentence by limited leave of the single judge. The appellant company has not indicated that it wishes to renew its application for leave to appeal on the grounds of appeal which were refused by the single judge. The applicant (Paul Kelly) applies for an extension of time (approximately four months) in which to renew his application for leave to appeal against sentence, following refusal by the single judge. The explanation advanced upon which the extension of time is sought is that, at the time of the refusal of leave, the applicant is said to have been in shock and preoccupied with the extent of the financial orders. It is suggested that he was unable to think clearly and had disengaged with his legal representatives. It is further suggested that, with the passage of time, the applicant had been able properly to consider the matter and had concluded that he did wish to renew his application for leave. It is contended that the grant of an extension of time would have no adverse impact, given the grant of leave to the appellant company.

6 The grounds advanced in seeking an extension of time are wholly unsatisfactory. The time limits are clearly set out. The applicant had the benefit of legal representation and he would have understood full well the potential impact of not renewing. If we had discerned any merit in the renewed application, we might have been persuaded to look more sympathetically upon the matters that have been advanced on the applicant’s behalf in respect of his failure to act within the time limit. The single judge, however, set out very clear reasons why there was no basis upon which the level of fine imposed upon the applicant could be properly criticised. In the circumstances the matter can be dealt with simply by refusing the extension of time that is sought, thus disposing of the renewed application made on behalf of Paul Kelly.

19 The judge also stated that he had in mind a number of authorities, but in particular R v Del Basso [2010] EWCA Crim 1119, [2011] 1 Cr App R(S) 41 , and R v Kohali [2015] EWCA Crim 1757, [2016] 1 Cr App R(S) 30 . The judge noted that in the case of Paul Kelly, although section 179(9) compelled the court to have regard to any financial benefit accrued in consequence of the offence, the court was bound to consider that this was represented to a large degree by the confiscation order of £225,000.

26…. It is reasonable to suggest that the benefit to the appellant is to be measured by reference to: (1) rental income, and (2) the enhancement of a capital value of the property which in turn will be affected by its potential to generate rental income.

28 In any event, as is made clear in cases such as R v Dagim Fish and Delilt [2014] EWCA Crim 2927 , and R v Smith [2014] EWCA Crim 1508 , the court’s focus is not solely upon the level of profit accruing from the breach. It also has to reflect the degree of culpability. In our judgment the appellant’s culpability is indeed significant on the facts of this case.

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