A confiscation order would be reduced where the judge had wrongly taken into account assumed additional financial benefits and had not taken into account a repayment of benefits made by the defendant's father.Appeal by appellant ('J') against a confiscation order made on 28 September 2001 by HH Judge Bassingthwaighte following a plea of guilty to one count of obtaining an exemption from liability to pay council tax by deception and to 22 counts of procuring the execution of a valuable security by deception. J claimed relief from council tax and jobseekers allowance by representing that he had no income or capital. In reality, J and his wife had savings of over ?68,000 and a number of assets including a caravan, various luxury cars and a boat. Following J's guilty plea J's father paid £81,819.24 to the council to cover the loss caused by the deception. J was then sentenced by Recorder P Moss to 22 months' imprisonment on each count concurrent. The Recorder took into account the lifestyle that J and his family had enjoyed supported by the fraud and decided that no compensation order was required because of the payment made by J's father. Subsequently a confiscation order was made against J in the sum of £118,660.69 under s.71 Criminal Justice Act 1988 which represented the figure that had been agreed between counsel as the amount of benefit obtained by J within s.71. J appealed in relation to £81,819.24 of the confiscation order, representing the amount paid by his father. J contended that: (i) the judge had based the exercise of his discretion under s.71 on the proposition that additional financial benefits must have been obtained by J as a result of the fraud; (ii) no acknowledgement was made of the fact that account had been taken by the Recorder in sentencing of the comfortable lifestyle J had enjoyed as a result of his deception; and (iii) the judge did not address the question of the extent to which repayment of benefits by J's father should have been taken into account.HELD: (1) It was not open to the judge to take into account benefits capable of measurement as pecuniary advantages when the parties had already agreed the amount of benefits obtained for the purposes of the 1988 Act and where the crown had not suggested that there had been further advantages. (2) It would have been desirable for the judge to have acknowledged that the sentence had already taken some account of the comfortable lifestyle that J had been able to maintain. (3) There was no objection to operating the scheme under the 1988 Act in a penal or draconian manner, however in this instance the discretion was more severe than necessary or appropriate. Account should have been taken of the fact that the benefits obtained were paid back. However, this would be tempered by the fact that J's father had made the payment and, although J intended to repay his father, J would continue to enjoy interest earned on the monies in the meantime. The court should not discourage relatives who wished to assist defendants to reimburse the victims of crime. (4) Accordingly, the amount of the confiscation order should be reduced to £78,000.Appeal allowed.

[2003] EWCA Crim 459

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