Baljinder Singh [2019] EWCA Crim 1428

In Baljinder Singh [2019] EWCA Crim 1428, the Court of Appeal refused leave to appeal a sentence of 28 months’ imprisonment for transferring criminal property contrary to section 327(1)(d) of the Proceeds of Crime Act 2002.

Mr Singh was the sole director of Devine Technical Services Ltd, a UK-based company with close links to an Indian company purporting to provide online technical support for computer users. His role was to operate a series of bank accounts into which proceeds of the Indian company’s fraud were paid. The fraud operated by deceiving computer users into believing their machines had been infected with viruses or subject to hacking, then persuading them to pay for IT support services. Mr Singh transferred the majority of the money to India but retained a sum for himself.

The fraud operated from August 2016 onwards and defrauded a number of victims, including Roger Lawton, who lost £2,770, Gordon Qin, who lost £2,442.50, Mariam Khwaje, who lost £1,600, Audrey Farrimond, who lost £399.99, later repaid by a third party, and Gillian Deakin, who lost £2,000. Money passed through bank accounts held by Mr Singh, some of which were closed by banks who became suspicious. The total amount laundered through accounts within Mr Singh’s control amounted to £300,188. Of this sum, Mr Singh retained £38,665 through cash withdrawals or transfers to further accounts he controlled.

The police were alerted by Daniel Morrison, a computer user who was contacted by DTS but became suspicious due to his previous work experience in telecommunications and investigation of online fraud. Mr Morrison researched DTS, discovered the company’s links to Mr Singh and his mobile telephone number, and telephoned him to discuss the matter. Not satisfied with Mr Singh’s purported explanation, Mr Morrison reported the matter to the police with evidence he had accumulated. Upon arrest and interview, Mr Singh said that his activity had been encouraged by a man called Nishant Walia, who had been introduced to him via a mutual friend and who had asked him to transfer large sums of money to India using bank accounts within his control, for which he could deduct a 10 per cent fee.

On the day of trial at Newcastle upon Tyne Crown Court, Mr Singh for the first time indicated that he would plead guilty to the money laundering count on a basis. The prosecution raised no objection to much of the basis of plea, did not seek a trial on any other count on the indictment, and Mr Singh was sentenced consistent with the basis of plea.

The Recorder found that Mr Singh had played a subordinate role with no managerial independence but was nevertheless an important cog in the scheme, providing the UK face of the operation and vital banking services to the fraudulent operation. Based on the total sum laundered, the appropriate harm category within the guidelines was Category 4. As to culpability, the offending was committed over a sustained period, Mr Singh was motivated by financial gain, this was not a one-off opportunistic offence, and he must have appreciated through the volume of monies transferred through his account the extent of the criminality in which he was involved. Notwithstanding that he was being given direction from overseas and was not directly involved in the underlying offence, he was not performing a limited role but an important one in the context of the offending. The offending fell within Category B culpability. The Recorder noted that the underlying offence involved the repeated defrauding of members of the public, particularly those with limited computer knowledge, by deceiving them into transferring money from their bank accounts, which had had a significant effect on those affected. It was not corporate or white collar offending but involved defrauding a large number of individuals of significant sums over a significant period. Whilst ordinarily the starting point would be three years’ imprisonment within the guidelines, with a range of 18 months to four years, the Recorder increased the starting point to three years and six months to reflect the nature of the underlying offence. The offence also involved cross-border transactions, which was an aggravating feature. The Recorder took account of Mr Singh’s previous good character and other matters of personal mitigation, including his remorse and shame for having become involved in these offences, the low risk of reoffending he posed, and the significant effect his first custodial sentence would have on him, his wife and two children. Some limited deduction was made for the fact that Mr Singh suspected rather than knew the underlying offences were criminal. Personal testimonials were also considered. The appropriate sentence after trial would have been 32 months’ imprisonment. Credit of 10 per cent was given for the guilty plea entered on the day of trial. The offence was so serious that only a custodial sentence could be justified, and the sentence was one of 28 months’ imprisonment.

Leave to appeal was refused by the single judge, who concluded that the Recorder had taken great care to consider and apply the guidelines, to make proper adjustments for the mitigating features, and had been entirely loyal to the basis of plea, reaching a sentence which lay well within the broad parameters of his sentencing discretion and which was neither manifestly excessive nor wrong in principle. Mr Singh renewed his application for leave to appeal, supported by Mr Doig, on the grounds that the Recorder failed in applying the sentencing guidelines to pay sufficient heed to the agreed basis of plea, wrongly applied the definitive guidelines in concluding that Mr Singh’s offence was one of medium culpability, and adopted too high a starting point.

Lord Justice Bean, Mr Justice Choudhury and His Honour Judge Potter rejected the renewed application. The court agreed with the single judge that the Recorder correctly applied the guidelines in the circumstances of the case and considered properly those matters raised by way of mitigation, including Mr Singh’s previous good character and other matters referred to. The court believed the judge imposed a sentence consistent with the basis of plea and that the sentence could not properly be viewed as excessive in the circumstances. The court also refused the application for a representation order but declined to make a loss of time order in the particular circumstances of the case. In short, the appeal was dismissed, the court finding that the 28-month sentence for money laundering was neither excessive nor wrong in principle.