A confiscation order could be made where no benefit had been obtained from stolen goods as they had been recovered by police. The judge had had ample material to make the statutory assumption and the defendant had failed to displace it.Appeal against sentence with leave of the single judge. On 15 September 2000 at Luton Crown Court before HH Judge Wilkie QC, the defendant ('W') was convicted of various offences including aggravated burglary and was sentenced to seven years' imprisonment. W had, at an earlier date, been convicted, at Peterborough Crown Court, of handling stolen goods in 1997. On 20 April 2001 at Luton Crown Court before HH Judge Greenwood a confiscation order of ?41,380 was made pursuant to s.71 Criminal Justice Act 1988. On 9 December 1998 the police interrupted a burglary on a newsagents. W was discovered at the back of the shop with cigarettes and batteries with a total value of £7,000. All the goods were recovered by the police. The previous conviction arose when W was discovered holding goods from a recent burglary of a public house. The stolen goods were valued at £1,270 and were all recovered by police. Those two offences constituted the qualifying offences that triggered the Crown's application for a confiscation order. When making the confiscation order the judge held that the fact that all the stolen property was recovered was irrelevant: it was obtained during the course of a burglary and the benefit was the value obtained. He held that W had benefited in the sum of £60,000. W had £7,000 in the bank and £12,380 was discovered buried in his garden. There could be no way that W's lifestyle was funded solely by state benefits and the assumption could be made that he had benefited from crime. W had realisable assets of £41,380. W appealed against the confiscation order on the grounds that: (i) the qualifying offences were not offences he had benefited from for the purpose of s.71 of the 1988 Act; (ii) the judge had a discretion whether to apply the statutory assumption under s.72AA(3) of the 1988 Act and, as W had only obtained property momentarily for one of the triggering offences, and all the property was recovered, that discretion should have been exercised in his favour; (iii) if it was not exercised in his favour then the assumption ought to have been rebutted under s.72AA(5); and (iv) he had received no benefit during the relevant six year period. The Crown contended that the judge had ample justification for what he had done. W was a career criminal who had committed regular burglaries and the judge was therefore entitled to make the statutory assumption.HELD: (1) The purpose of the statutory assumption, that a defendant's source of income was the proceeds of crime, shifted the balance to the defendant to show that it was not. Section 72AA was a draconian measure which was Parliament's intention. (2) The applicability of the section was triggered by the commission of "qualifying offences"; the success of those offences was irrelevant. Once the section was triggered, the property did not need to be referable to any piece of criminality or to any success. (3) W could have displaced the assumption by showing that his income had come from other sources. Further, s.72AA(5) was there to prevent incorrect assumptions being made. (4) There was no dispute over the fact that W had a bad record for dishonesty and there was ample evidence that he was a career criminal. W's lifestyle went beyond state benefits, which were the only "legal" income he had. There were also large sums of money found in the bank and buried in his garden. The judge had ample evidence to make the assumption and there had been no injustice. W had failed to displace the assumption. To accept his contention that he had derived no benefit because the stolen property was all recovered would drive a coach and horses through Parliament's intention. R v David Cadman Smith (2002) 1 WLR 54 considered.Appeal dismissed.

[2003] EWCA Crim 848

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