Gennaro Orabona [2019] EWCA Crim 1338
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Gennaro Orabona v R [2019] EWCA Crim 1338 concerned an appeal against sentence by a man convicted of large-scale counterfeiting and money laundering. The Court of Appeal (Lord Justice Davis, Mr Justice Edis and His Honour Judge Potter) dismissed the appeal.
On 7 November 2018 Mr Orabona, then aged 61, pleaded guilty in the Crown Court at Blackfriars to two counts of having custody or control of false instruments contrary to section 5(1) of the Forgery and Counterfeiting Act 1981 (counts 1 and 2) and seven counts of converting criminal property contrary to section 327(1)(c) of the Proceeds of Crime Act 2002 (counts 6 and 11 to 16). On 22 November 2018 Judge Darling sentenced him to five years’ imprisonment concurrent on counts 1 and 2, and to 20 months’ imprisonment concurrent on each money laundering count, those sentences to run consecutively to the sentences on counts 1 and 2. The total sentence was therefore six years and eight months’ imprisonment. A further seven counts of converting criminal property were ordered to lie on the file.
The offending came to light following a period of surveillance. Mr Orabona operated what purported to be a legitimate retail clothing business from shop premises in London NW1, but which was in effect a front to enable him to launder the proceeds of crime. He also controlled a storage facility which held counterfeit postage stamps. Between May and October 2018 he and another man were observed visiting the storage unit on a number of occasions to deal with or transfer the counterfeit stamps. Mr Orabona was seen meeting men at various locations and handing them packets and envelopes. On 1 October 2018 he was arrested at the storage facility. An envelope containing counterfeit first and second class UK postage stamps in booklets of 12 was recovered. Inside the facility officers found 300,000 books of mixed first and second class stamps, equating to 3.6 million counterfeit stamps with a face value of approximately £2.2 million. Further stamps and a considerable quantity of clothing were recovered from his shop premises. It was not in dispute that the stamps were all counterfeits. They were assessed to be sophisticated forgeries with some attempt to mimic the security measures applicable to official stamps. When interviewed Mr Orabona answered some questions relating to motorcars he had been seen in but refused to answer questions about the stamps.
A financial investigation was also undertaken. A production order was obtained in relation to bank accounts linked to Mr Orabona. The investigation covered various business concerns seemingly connected to him, though it proved difficult to ascertain what those businesses actually traded. The money laundering charges related to the unexplained movement of over £1.2 million through seven different bank accounts between 11 February and 1 October 2018. The money laundering was assessed to have been sophisticated. Although the money or some of it purported to relate to clothing companies, there were very few signs of legitimate trading on a scale to justify movement of such large sums. Mr Orabona had paid minimal personal tax and very little corporation tax.
Mr Orabona was in poor health and had a relevant antecedent history, having a number of convictions in the Italian courts for offences of fraud and related offences. It appeared that at the Crown Court detailed negotiations between counsel and the prosecution had taken place, resulting in a number of money laundering counts not being pursued. Mr Orabona pleaded guilty with no basis of plea being tendered.
In passing sentence Judge Darling set out the facts in detail. He noted that the money laundering involved £1.2 million moving through seven bank accounts and stated that it was difficult to say, and that there was no evidence to show, that the money going through those accounts related to stamps. He found that what was clear was that none of it was legitimate. The judge found that Mr Orabona had lived for a significant period a life based entirely on significant and lucrative dishonesty. He described him as a thoroughly dishonest and, until then, successful criminal. The judge referred to the plea, which was at the first available opportunity, and to the appellant’s age and health issues. It was common ground that counts 1 and 2 did not have any precise sentencing guideline applicable. The judge had regard, by way of analogy, to the guideline relating to conspiracy to defraud. On that footing he was in no doubt that this was category 1A, involving greater harm and high culpability. Had there been a trial, and factoring in the aggravating and mitigating factors, he would have reached a total sentence of 12 years but reduced that by two years on grounds of totality. Having reached a figure of 10 years he deducted a full third by way of credit for the early plea, thereby reaching a total figure of six years and eight months’ imprisonment.
On appeal Mr Tomassi, adopting written grounds drafted by Mr Martin of counsel, submitted that the sentence was excessive. He argued that the judge had been wrong to adopt the guideline relating to conspiracy to defraud and suggested that other guidelines, such as those relating to making or supplying articles for use in fraud or revenue fraud, might have been more appropriate, indicating a lower sentencing range. He further submitted that the judge had been wrong in principle to impose consecutive sentences for the money laundering counts. It was suggested that there was nothing to show that the money passing through the accounts had been derived from criminal conduct other than that reflected in counts 1 and 2, and that the court should have approached sentencing on the basis that there was one overall criminal enterprise covering all counts.
The Court of Appeal rejected these arguments. Lord Justice Davis, giving the judgment of the court, held that this was a very large scale fraud involving counterfeit postage stamps. The court referred to R v Chinnappah [2016] EWCA Crim 1369, in which the court had stated that fraudulent dealing in counterfeit postage stamps imported from abroad was a serious matter with the ability to impact on public confidence. The court rejected the complaint that the judge had wrongly relied on the conspiracy to defraud guideline. Although counts 1 and 2 had not been charged as a conspiracy to defraud, in substance there was a conspiracy to defraud involved and the judge was fully entitled to have regard, albeit not being bound, to the guideline relating to conspiracy to defraud.
The court was also not able to accept the complaint that the judge wrongly imposed consecutive sentences on the money laundering counts. There had been no evidence to show that the money laundering had occurred as part and parcel of the counterfeit stamps operation. That had always remained the position up to and including the time counsel addressed the judge in sentencing, and that had always been the position of the prosecution. The court rejected the submission that there must be some unease at it being concluded that the money laundering counts were distinct from the counterfeit stamp operation. There was no evidence to show that the money laundering was linked to the counterfeit stamps. If that was to be the position argued on behalf of the defence then either a basis of plea should have been put in, which may or may not have been accepted, or a Newton hearing should have taken place. None of that happened and at no stage had Mr Orabona advanced any positive case that the money laundering was wholly part and parcel of the counterfeit stamp operation. The court noted that Mr Orabona had not accepted that all the counts of money laundering were rightly brought against him, but that led nowhere because the negotiations had resulted in a number of the money laundering counts being dropped in any event.
Ultimately the question was whether, as a matter of totality, for all this offending a starting point of 10 years balancing aggravating and mitigating factors but before credit for plea was excessive. The court concluded that it was not. The judge’s sentencing remarks were very well structured and crystal clear. The money laundering merited increasing the overall sentence over and above that appropriate to counts 1 and 2 taken alone. The sentencing on the money laundering counts would have been very much greater than it was but for the considerations of totality. It might be that this was a severe sentence for a man of Mr Orabona’s age and with his health problems, but this was very serious criminality. The court was not persuaded that a total sentence of six years and eight months’ imprisonment was excessive. In short, the appeal against a sentence totalling six years and eight months’ imprisonment for large-scale counterfeiting and money laundering was dismissed, the Court of Appeal holding that the judge was entitled to treat the money laundering as a separate operation meriting a consecutive sentence and that the overall sentence was not excessive given the scale and seriousness of the offending.