Neutral Citation Number: [2008] EWCA Crim 408
Case No: 200704557/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 20th February 2008

B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE IRWIN 
 
MR JUSTICE COULSON 
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R E G I N A 

v 

OSCAR PATRICK OLUMBA 
 
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Miss S Davies appeared on behalf of the Appellant 
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J U D G M E N T 

1.	Mr Justice Irwin: On 7th July 2006, in the Isleworth Crown Court before His Honour Judge McGregor‑Johnson, the appellant entered a late plea to an offence of being knowingly concerned in a fraudulent evasion of the prohibition on class A drugs, cocaine.  On 4th August 2006, before the same court but with a different judge, he was sentenced to six years' imprisonment and recommended for deportation.  On 19th July 2007, before His Honour Judge Colgan in the same Crown Court, he was made subject to a confiscation order under the Proceeds of Crime Act 2002 in the sum of £110,000, or in default to serve three years' imprisonment consecutive to the substantive sentence.
2.	He appeals against the sentence in default of payment of the confiscation order only, by leave of the single judge.
3.	The confiscation order in the sum of £110,000 having been made, there was a requirement to fix a period of imprisonment to be served in default of payment of the confiscated sum.  Under the Powers of Criminal Courts (Sentencing) Act 2000 section 139(4), the maximum period that may be imposed in default of payment of an amount exceeding £100,000 but not exceeding £250,000 is three years.  In other words, this sum fell just into that bracket. The sentence to be served in default was the maximum which could be imposed for amounts within that bracket and the maximum which could have been imposed for a sum to be confiscated more than twice this amount.  That is the complaint.
4.	In fixing this order, which he did very briefly, Judge Colgan said simply: 
"I have to impose a sentence in default, which I think will be one of three years will it not? 
All right."
5.	That was the sum of his order.  It may be that he considered that the maximum was almost to be imposed automatically.
6.	It is to be emphasised that such periods of imprisonment are intended to be roughly proportionate to the default of compensation, a separate matter from the original offence giving rise to the compensation proceedings, although no doubt the judge in setting the period can and should have regard in general to the circumstances of the case.  This is an exercise of discretion for fixing an appropriate default period within the relevant band: see the decision of this court in Szrajber (1994) 15 Cr App R(S) 1821.  As this court found in Elias [1998] EWCA Crim 3519, where the compensation order is near to the bottom of the bracket it will not usually be appropriate to fix a period at the maximum of the bracket.
7.	Here we find the appropriate period is one of two years' imprisonment in default to be served consecutive to the prison sentence for the underlying offence.  To that extent, and for those reasons, this appeal succeeds.