Conspiracy to Defraud: A Clarification of the Sentencing Approach

AuthorAnita Killeen
DOI10.1350/jcla.2013.77.5.864
Publication Date01 October 2013
SubjectComment
COMMENT
Conspiracy to Defraud: A Clarif‌ication of the
Sentencing Approach
Anita Killeen*
Keywords Totality principle; Conspiracy to defraud; Sentencing guide-
lines; Seriousness of the offence; Deferred Prosecution Agreements
The Court of Appeal in Re Attorney-General’s Reference (Nos 7 and 8 of
2013)1has clarif‌ied the sentencing approach for serious and complex
fraud cases involving conspiracy to defraud in two separate appeals (R v
Kallakis and Williams; R vLevene). The cases raised common issues which
counsel agreed made it convenient for the court to consider them
together and issue a joint judgment. The cases are not linked, except in
subject matter, but they both involve the opportunity to address sen-
tencing levels in cases which involve the maximum level of seriousness
by value. The R vKallakis and Williams matter was an appeal by the
Attorney-General. The Attorney-General made an application pursuant
to s. 36 of the Criminal Justice Act 1988 for leave to refer, as unduly
lenient, sentences imposed for offences of fraud and related offences.
Furthermore, the Attorney-General requested the Court of Appeal to
consider afresh the approach to sentencing for the most serious offences
of conspiracy to defraud.
The key issues raised by the appeals are as follows:
1. whether and to what extent the Sentencing Guidelines Council’s
guideline upon sentencing for statutory offences of fraud is rele-
vant to the task of sentencing for an offence of conspiracy to
defraud;
2. to what extent the absence of loss may constitute mitigation of the
seriousness of the offence; and
3. the appropriate use of the power to impose consecutive sentences
for substantive offences of fraud and for conspiracy to defraud.
The cases under appeal
R vKallakis and Williams
In January 2013, Achilleas Kallakis and Alexander Williams were found
guilty of two counts of conspiracy to defraud in relation to Britain’s
largest ever mortgage fraud prosecution. The offenders together with
Michael Becker, a Swiss lawyer based in Lugano, and others unknown,
conspired together to defraud Allied Irish Bank (AIB) by using forged
and false documents and representations in order to obtain sizeable
* Barrister, Quay Chambers, Auckland, New Zealand; former Chief Prosecutor of the
Serious Fraud Off‌ice, New Zealand; e-mail: anita.killeen@xtra.co.nz.
380 The Journal of Criminal Law (2013) 77 JCL 380–386
doi:10.1350/jcla.2013.77.5.864

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