Angela Veronica Gill+jane Craig+catherine Montgomery V. Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Malcolm,Lord Carloway |
| Judgment Date | 07 October 2010 |
| Neutral Citation | [2010] HCJAC 99 |
| Published date | 07 October 2010 |
| Date | 07 October 2010 |
| Court | High Court of Justiciary |
| Docket Number | XJ282/10; |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Hardie Lord Malcolm | [2010] HCJAC 99 Appeal Nos: XJ282/10; XJ712/10; XJ328/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEALS AGAINST SENTENCE by ANGELA VERONICA GILL; JANE CRAIG; and CATHERINE MONTGOMERY Appellants; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
Appellants Gill and Craig: J Scott, solicitor advocate; Capital Defence (for Jacqueline Doyle & Co, Glasgow)
Appellant Montgomery: Jackson QC, MC Mackenzie; Barony Law
Respondent: McSporran AD; Crown Agent
7 October 2010
(1) The Sentences
Each appellant pleaded guilty at Glasgow Sheriff Court to a contravention, or contraventions, of section 111A(1A) of the Social Security Administration Act 1992 by knowingly failing to give prompt notification of a change of circumstances, which she knew affected her entitlement to benefits. In each case the appellant ought to have advised the Department of Work and Pensions that she had obtained employment and was thus earning. The maximum penalty for a contravention of the section is seven years imprisonment on indictment (sub-section 111A(3)) but twelve months if prosecuted summarily (Criminal Proceedings etc. (Reform) (Scotland) Act 2007 s 45) as all the present appeals were.
(a) MS GILL
Ms Gill pleaded guilty on 16 September 2009 to one offence; libelled as occurring only on one day, namely 13 February 2005. She had received £9,500 of Income Support to which she was not entitled. On 9 December 2009 she was sentenced to two months' imprisonment, discounted for the early plea from 3 months.
Her personal circumstances were that she was aged 29 and had recently broken off a relationship. She normally lived with her six year old son but, because of developments associated with the offence, he had gone to live with his father meantime. Although no previous convictions were libelled against her, the Social Enquiry Report revealed that Ms Gill had been fined for a road traffic offence, had other road traffic matters outstanding and had also attended a Diversion from Prosecution scheme for shoplifting.
The Social Enquiry Report described Ms Gill's difficult upbringing, with her mother having mental health problems and her father struggling with alcohol dependency. This culminated in Ms Gill becoming involved in an abusive relationship with a boyfriend and with drug experimentation in her late teens. Despite leaving school without any qualifications, she did achieve some success at college, gaining a Certificate in Care and obtaining some work looking after persons with learning difficulties. It was this paid sessional work that she had failed to declare.
Ms Gill had sought assistance for her depression since being charged with the offence. She had, by then, become addicted to diazepam and dihydrocodeine but, in February 2009, had referred herself to the local addiction services. She was placed on a methadone programme. Because of significant progress prior to the sentencing diet, Ms Gill was assessed as at low risk of re-offending. She was repaying benefits at the rate of £15 per week.
(b) MRS CRAIG
Mrs Craig pleaded guilty to two charges on 24 May 2010. Her offences had taken place between July 2006 and February 2009 and had resulted in her obtaining £7,403 of Housing Benefit and £6,989 of Income Support to which she was not entitled. On 18 June 2010 she was sentenced to 135 days imprisonment (41/2 months), discounted from 180 days (6 months) for an early plea.
Mrs Craig's personal circumstances were that she was 56 years old. She was unemployed at the time of sentencing. She came from an impoverished background. She had had an uneventful education. She had married in her late teens but had been divorced for many years. She had two adult daughters. She had suffered from depression for some fourteen years. More recently, Mrs Craig had become stressed because of one of her daughter's health problems. She had begun to drink excessively. She accepted responsibility for the offences, having continued to claim benefits in order to subsidise herself and to pay for a recently purchased car. The Social Enquiry Report recorded her offending, no doubt accurately, as "deliberate, pre-meditated and financially motivated". Despite the absence of any previous convictions being libelled, the Social Enquiry Report noted that the appellant had acquired three recent convictions in the form of road traffic offences, including a breathalyser charge, and theft by permitting friends to obtain goods in the shop where she worked without paying for them. She was assessed as at moderate risk of re-offending. Mrs Craig had repaid some £253 by the time of the sentencing diet and was continuing to do so at the rate of £13 per week.
(c) MRS MONTGOMERY
Mrs Montgomery pleaded guilty on 4 November 2009. Her offence was said to have occurred on a single day. She had acquired Disability Living Allowance of an amount unspecified on the complaint. This was agreed as totalling £17,189. On 3 March 2010, the matter having been continued pending a Tribunal determination on the amount of illicit benefit gained, she was sentenced to five months' imprisonment, discounted from eight months for the early plea.
Mrs Montgomery was aged 57, married with three adult children. She comes from a relatively supportive and stable family background. She had been in regular employment until recent events. She had undertaken cleaning work and failed to declare it. Meantime, she had been receiving Incapacity Benefit for arthritis. She too has suffered from depression but has had no alcohol or drugs issues. Her husband had recently undergone surgery for prostate cancer. The appellant was not in any significant financial difficulties at the time of the offence. The appellant was repaying the benefit at the rate of some £70 per month. She was remorseful and assessed as at low risk of re-offending.
(2) Precedent
When the appeals of Ms Gill and Mrs Montgomery called before two judges on 11 July 2010, the court noted that there were guideline cases in England dealing with this category of offence (R v Stewart [1987] 1 WLR 559; revised in R v Graham [2005] 1 Cr App R (S) 115). The court remitted the appeals to a bench of three judges to hear the merits of the individual cases, and that of Mrs Cairns which was added to the roll at a later date, and to consider issuing guidelines for sheriffs hearing similar cases in terms of sub-section 189(7) of the Criminal Procedure (Scotland) Act 1995.
The court was referred to several Scottish cases, most of which are summarised in Morrison: Sentencing Practice. It is not unreasonable to comment that there has been a divergence in view between differently constituted sentencing courts. For example, in Ahmed v HM Advocate [2002] GWD 39 - 1291, Morrison para F13.0004, (Lords MacLean and Sutherland) a discounted sentence of 18 months was considered reasonable for a £21,329 Housing Benefit fraud committed by an ill 60 year old man. Similarly, in Macrae v HM Advocate 1987 SCCR 712 (Lord Justice-Clerk (Ross), Lords Dunpark and McDonald) a sentence of nine months imprisonment on a 52 year old convicted of a £3,500 benefit fraud was upheld, even although the appellant had no previous convictions and a good work record. However, in Downie v HM Advocate 1999 SCCR 375...
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