Case No: 20060171/A9 
Neutral Citation Number: [2007] EWCA Crim 1489
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Wednesday, 2nd May 2007
 
B E F O R E:

LORD JUSTICE RIX 

MR JUSTICE RAMSEY 
 
HIS HONOUR JUDGE STEWART QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 

- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

-v- 

DAVID JOHN HOWARD 
 
- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcript of the Stenograph Notes of 
A Merrill Communications Company
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr C Clark [solicitor advocate] appeared on behalf of the appellant

- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	Judge Stewart: On 7th August 2006, in the Crown Court at Stafford, the appellant pleaded guilty to eight counts of theft, one of obtaining services by deception, two of false accounting and one of obtaining a money transfer by deception.  He was sentenced in total to 32 months' imprisonment.  Subsequently a confiscation order was made in the sum of £112,247.71 to be paid within six months and the default term was set at three years to be served consecutively to the substantive sentence of 32 months.
2.	This appeal is limited to the default term imposed upon the confiscation order by leave of the single judge.
3.	The facts can be shortly stated.  The appellant had been an accounts manager for ten years.  His duties included controlling payments and wages to employees.  He set up a bank account in a fictitious name and completed the appropriate forms to include this fictitious employee on the company payment system.  He noted the extra payments down in the company books as payment for postage and transport costs.  His overall criminality involved £238,000.  His employers became suspicious, challenged him and he fully co-operated with the police.
4.	The benefit figure, unopposed, was the £238,000 figure to which we have referred.  The confiscation order was made in these terms.  That it should be the full net proceeds of the sale of his home which appeared on a civil standard of proof to have been purchased out of the benefit derived from his criminal activity and that amounted to £112,347.71.  He was given six months to pay.  The maximum default period of three years was imposed.
5.	It is submitted on behalf of the appellant that £112,000 is just over the £100,000 limit where the maximum sentence in default would have been two years.  It is submitted that it is wrong in principle for a sentencing judge to impose the maximum of three years for an amount up to £250,000.
6.	We have been referred to the case of Szaijber 15 Cr App R(S) 121 in which it was pointed out that it is not appropriate to approach the case on the simple arithmetic basis.  The sentencing judge is obliged to look at the circumstances and overall seriousness of the offence when deciding the appropriate sentence in default of payment.
7.	We consider there is merit in this submission, that three years in default of payment was manifestly excessive.  We quash that part of the sentence and substitute a sentence of two years in default.  To that extent this appeal is allowed.