Elsayed v Regina

The trial judge had been entitled in the circumstances of the case to make findings of fact that the defendant would have reduced the purity of the cocaine in his possession and then sold it. The judge had not erred in then taking the potential retail value of the cocaine as the key figure in calculating the benefit for confiscation proceedings.

The appellant pleaded guilty to possession with intent to supply class A and possessing criminal property. The police executed a search warrant at an address at Fulham, London. £39,500 in cash was recovered as well as quantities of cocaine, diazepam and cannabis. On examination of the cash the fingerprints of the appellant were discovered. The appellant was arrested at his work place and his work locker was searched. It was found to contain 169 grams of cocaine, a small wrap containing under 3g of cocaine and £56,510 in notes. His home was searched and no cutting agents wraps or bags were recovered, although a scalpel and scales were. The 169 grams of cocaine were of 80% purity and the small wrap was of 5% purity.

The appellant put forward a basis of plea for the purposes of sentence which was rejected by the prosecution. The appellant in his basis tried to assert that he had been in circumstances of financial and personal stress. He started to take cocaine. After a while his supplier asked him to look after the drugs and he agreed to hold them at this place of work. In remuneration he would receive small amounts of cocaine for his personal use and £500 per week. He stated that his position in regards to the drugs was that of custodian and he also agreed to store money for his dealer. The appellant did not seek a Newton hearing before being sentenced.

The Crown asserted throughout the proceedings that the appellant was dealing drugs at street level and would have cut the 169 grams of cocaine into individual wraps of 5% purity. During confiscation proceedings the Crown in its s16 statement submitted the street value of the cocaine to be £108,160. It was common ground that the criminal lifestyle provisions applied.

The Judge found the appellant's account at the confiscation hearing "very incredible" and preferred the prosecution account.

The sentencing Judge therefore used the retail value as the value for the drugs when calculating the benefit figure.

On appeal the appellant argued that the prospective retail value was speculative, and the wholesale value of the drugs should have applied which was £6,857. The appellant's relied on s.80(2) (a) of the Proceeds of Crime Act 2002 that the value of the drugs had to be assessed at the time he obtained them.

Held: The appeal was dismissed. The Judge had made findings of fact, which he was entitled to do, as to what the appellant would have done with the drugs. The appellant was not believed to either be a custodian or a wholesaler. The Judge had adopted the view that the appellant was going to cut, sell and deal at street level. The findings of fact were not speculative and they determined the value of the property obtained by the appellant, the market value as specified in section 79(2) of the Proceeds of Crime Act 2002 at the time the appellant had the drugs. The Judge's conclusion flowed from a fair and purposive construction of the legislation and was reflective of the purpose of the Act: to deprive the defendant of the benefit of his criminal conduct.