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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ozakpinar, R v [2008] EWCA Crim 875 (7 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/875.html Cite as: [2009] 1 Cr App Rep (S) 8, [2008] EWCA Crim 875, [2009] 1 Cr App R (S) 8

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 7 April 2008

1. MR JUSTICE DAVID CLARKE: On 24th September 2007 in the Crown Court at Croydon before His Honour Judge Ainley and a jury, the appellant, who is 45, was convicted of one count of false accounting and three counts of corruption. He received sentences totalling two-and-a-half years' imprisonment, that is to say two-and-a-half years' imprisonment on each count of corruption concurrently and 12 months on the count of false accounting. It was directed that 42 days spent on remand should count towards the sentence.
2. There were two co-defendants. Francis Pullen, who was 57, was found guilty on two counts of corruption and received 10 months' imprisonment. Jeanetta Nelson, aged about 40, was convicted of one count of corruption and she on a later date received six months' imprisonment suspended for two years and was ordered to pay a total of £11,000 in costs.
3. The trial had lasted some three weeks. The judge described it as "hard fought". We take the facts from the prosecution case summary on which the Court of Appeal office summary has been prepared, from the advice on appeal from counsel Mr Harrison and from the skeleton argument submitted by Mr Patterson on behalf of the Crown.
4. The facts can be summarised in this way. The appellant was the Chief Procurement Officer for the Crown Prosecution Service. It was a national post. His duties included procuring self-employed contractors to complete work which was beyond the expertise of CPS in-house workers. The prosecution arose from his dealings with three different individuals or companies which were supplying to the CPS. Two of those individuals were his personal friends. One of them was a Mr Pullen whom he employed to complete a contract to provide the CPS with an E-procurement system, in simple terms a computerised shopping system for stationery items. He ensured that Mr Pullen got the contract by selecting him as the sole candidate to be interviewed for it. The interview was conducted by himself and two others. There had been no involvement of the CPS's usual process to find service providers, a process known as S-CAT.
5. In relation to the contract granted to Mr Pullen the work was carried out, but on completion of each of two contractual phases of the work Mr Pullen paid £6,000 to the appellant, one of those sums being paid on 29th November 2003 and the other on 10th May 2004. What the appellant had done was to arrange that within the contract, although he did not consult the CPS finance director to whom he was subordinate about this arrangement, that Mr Pullen would receive milestone payments of £20,000 in the course of the work and it was on payment of each of those milestone payments that the appellant received in return from Mr Pullen the payments of £6,000 which we have referred.
6. He engaged Miss Nelson, the other co-defendant, to complete a contract to appoint a network of receivers to give effect to the collection of assets to satisfy court orders under the Proceeds of Crime Act. Her application did not come through the S-CAT process, but the appellant ensured that she was on the shortlist of candidates, the others having come through that process. He was then on the interviewing panel and there is evidence to indicate that he was instrumental in her obtaining the contract.
7. Regarding her contract, she competed the work under it and on completion of one contractual phase she paid the appellant £6,000 on 17th December 2003. Again this payment was made when she received a milestone payment under the contract, although that provision of the contract had not been discussed by the appellant with his superior.
8. The false accounting count arose from the fact that the appellant appointed Miss Wasilewska to carry out work writing guides for the assistance of the CPS in order to bring into place a cost effective and efficient procurement system, a topic on which the appellant had some knowledge and expertise. This lady had been a temporary CPS employee and later became a full employee, but at the time that this contract was granted she was effectively freelance.
9. Shortly after the grant of the contract to her the appellant asked her to provide a draft invoice template. She provided that to him, leaving the amount blank. He completed it, purporting to show that all the work under the contract had been done. In fact to a large extent the work had not then been completed. But on the strength of the invoice the sum of £12,440, a contractual sum which was not in fact due at that stage, was paid to her. She thought she would only receive £5,000 because she had so agreed with the CPS and so she queried that sum with the appellant who told her that the additional £7,440 was earmarked for additional consultancy work. He asked her to pay it over to him for safekeeping against her future consultancy work, claiming that this had been agreed with another member of the senior staff, a Mr Cranford, but in fact that gentleman knew nothing about it. Miss Wasilewska gave him the cheque for £7,440. He paid it into his bank account. He was in due course arrested before that contract was completed and thereafter after his arrest repaid the money which he had received.
10. The offences came to light in the summer of 2004. He was suspended from duty. He denied the offences in interview and, as we have indicated, stood his trial.
11. The appellant had no relevant previous convictions and was clearly treated as a man of good character. No pre-sentence report was sought or obtained. The learned judge made clear and, in our judgment, well-crafted sentencing remarks. In view of the submissions that are made and in view of the fact that his remarks set out his reasons for imposing what he no doubt recognised might be seen as a severe sentence, it seems to us right to set out his remarks in full. He said this:

"Corruption in a public servant damages the public's faith in the honesty of civil servants as a whole and in the probity of government bodies. It is a corrosive vice and when it is discovered it must be rooted out and be seen to be rooted out. The temptation to act dishonestly is for most civil servants non-existent. So that those few who might be tempted are deterred, the courts must pass deterrent sentences when public servants are involved in corrupt activities."

Addressing this appellant he said:

"... you were a senior civil servant. You were the head of procurement and estates of the Crown Prosecution Service. You got to that position by your ability and, while you were in that position, everyone noted your hard work. But you were tempted. You must have done what you did out of greed because the evidence was that although you had debts, significant debts, they were manageable on the income that you had."

Then he recited the facts in relation to Miss Wasilewska recognising, for the purpose of sentence, that he never intended to keep that money forever anyway. The judge went on:

"But what you then did is that you took bribes from Miss Nelson of £6,000 and from Pullen of £12,000, a total of £18,000. I am sure from the verdicts and from the evidence that was heard that these were friends whom you helped to get employment from the Crown Prosecution Service; in the case of Mr Pullen by by-passing the interview procedures almost entirely so that there was no question but that he would get the job; in the case of Nelson, you made sure she was on a shortlist of three and you did that almost within hours of knowing that she was potentially someone who would do the work that she did. Now, I accept, and I make this plain, as I made it plain to counsel earlier on, that the people whom you helped into positions that they later occupied were not incompetents, they were quite the reverse. If the entire recruiting procedure had been transparent and above board they might very well have got the jobs they went into. But I am quite satisfied so far as you are concerned that you got the payments from that that you did as a reward for what you had done. There is no question in my mind but that these payments would not have been made of course unless the mile stone payments had been granted but, if they had not been, lying behind that is the fact that you got them into the position you had and you wanted rewarding for it.

It seems to me that although the sums in this case are nothing like as large as they might have been, nonetheless this was a case that was fought and fought hard. Although I will add nothing to your sentence because of that, a guilty plea is of course one avenue of mitigation that is simply not open to you. Your position, the fact that the offences were committed on more than one occasion, and the fact that the amounts, although not immense, were not insignificant, lead me to conclude that the least sentence that I can pass -- and this will be the total sentence that you will serve -- is one of two-and-a-half years' imprisonment."

He then went on to impose those sentences to which we have referred.

12. For the appellant, Mr Harrison, who has appeared before us as he did at the trial, makes a number of submissions designed to establish that two-and-a-half years was manifestly excessive. He sets out these submissions in eleven bullet points in a document which he helpfully placed before us this morning. He submits that there is no evidence that the appellant's employers, the CPS, or the public as a whole, were defrauded or did not get value for money. The contractors Mr Pullen and Miss Nelson were competent, they did their jobs properly and he submits that although in those two cases the appellant ended up with money in his own pocket from the payments made by the employers, he submits that they were not in fact overpaid. The fact is that there was no evidence one way or the other to establish whether the work could have been obtained more cheaply from others. Miss Wasilewska likewise did her work properly and we are reminded that the overpayment which ended up in the hands of the appellant was in due course repaid.
13. Mr Harrison submits that the gravity of the appellant's conduct must be measured by reference to the amounts that he received. That was, if one ignores the money in respect of Miss Wasilewska which was in his hands for a temporary period only, £18,000. Mr Harrison draws the analogy with the theft in breach of trust cases, Barrick and Clark, and on the strength of those submits that this case could have justified a sentence of no more than 18 or 21 months. He also submits that the false accounting offence involving Miss Wasilewska would not, standing alone, have passed the custody threshold and therefore should not play a significant part in increasing the total sentence for the corruption offences.
14. Counsel relies on a number of cases which culminate in the decision of this court in Bush [2003] 2 Cr.App.R (S) 117 at page 686 in which a sentence of four years was imposed after trial on a local authority employee who received sums totalling £40,000 over a six year period for placing and maintaining a heating company on the council's approved list. He was not able to guarantee contracts to that company but he was able to nominate them onto the list so that it would be given the opportunity to tender for work. The court in that case reviewed the earlier authorities and reduced the sentence to two-and-a-half years. It was in the light of that decision in particular that the single judge thought it right to grant permission to appeal in the present case.
15. Mr Harrison also submits as his final submission that there was an unacceptable disparity between the two-and-a-half year sentence imposed on the appellant and that of 10 months and six months respectively (the latter being suspended) passed on the co-defendants.
16. This court does not accept the underlying premises of Mr Harrison's submissions. First, we deal shortly with the submission about the sentence for false accounting. We should not be taken to accept the submission that standing alone it would not have passed the custody threshold. Even if this were right, this is no reason for not taking it into account in fixing the overall prison sentence because it would have attracted significant punishment in some other form which in the present circumstances of course was not being imposed on the appellant.
17. On the main submission we, like the single judge, do not accept that the Barrick and Clark [1997] EWCA Crim 3081 guidelines provide the yardstick for measuring sentence in this case - a proposition for which there is no authority to be found in any of the previous corruption decisions of this court. This appellant was a senior civil servant who had charge of substantial public funds. In the cases of Mr Pullen and Miss Nelson he bypassed proper procedures to ensure that they obtained the relevant contracts and was blatantly rewarded by them for what he did. In Mr Pullen's there was no competitive tendering at all. In Miss Nelson's case he added her improperly to the shortlist which had been properly produced and actively supported the allocation of work to her. What he did in relation to Miss Wasilewska was in our judgment on any view blatant dishonesty for his own benefit, even if that benefit was only intended to be a temporary one. The particular factor of his conduct which in our judgment was grave was the way in which he arranged the milestone payments without clearing them with his financial director and thereby enabled the payments to himself to be made from the payment to the contractors of those milestone payments.
18. As to the reliance on Bush which itself followed a review of earlier authorities, there are in our judgment a number of distinctions to be made. First, we accept the submission made by Mr Patterson for the Crown that this man operated at a significantly more senior level than Bush who was the heating manager for a London borough. The appellant held a national position as Head of Procurement for the Crown Prosecution Service. Secondly, there was a corrupt relationship here between him and three contractors. He engineered the payments to himself in the way that we have indicated. Furthermore, there is nothing to suggest that in the case of Bush the heating company in fact obtained contracts otherwise than by open competition with other contractors on the approved list, nor so far as we have been able to see from the report was there any evidence to show that they could not have obtained places on that list by proper means. We note also, although we do not put this high in our consideration, that the court was marginally influenced in that case by the non-custodial sentence imposed on the co-defendant Mr Green.
19. We find nothing in the Bush decision or in any of the other cases to suggest that the Barrick approach is appropriate in a corruption case, which contains elements of criminality (well spelt out in the authorities) which go beyond and are quite different to the dishonesty involved in theft and breach of trust. Nor in our judgment is there warrant for adopting a similar scale for the public official who receives, or (worse) solicits and receives, the corrupt payment, as for the private businessman who makes that payment. In our judgment the disparity argument does not assist here either.
20. At the end of the day, after hearing substantial submissions from Mr Harrison, this court remains unpersuaded that the sentence was manifestly excessive or that the learned judge erred in any way. Accordingly, the appeal against sentence is dismissed.