In court
| Published date | 01 March 2010 |
| Author | Nigel Stone |
| DOI | 10.1177/0264550509346101 |
| Date | 01 March 2010 |
| Subject Matter | Articles |
The Journal of Community and Criminal Justice
Copyright © 2010 NAPO Vol 57(1): 95–107
DOI: 10.1177/0264550509346101
www.napo.org.uk
http://prb.sagepub.com
Nigel Stone, Senior Lecturer in Criminology in the School of Social Work and
Psychology, University of East Anglia, reviews recent appeal judgements and other
judicial developments that inform sentencing and early release.
General sentencing issues
Dishonesty, dependents and immediate custody
In earlier case decisions, notably Mills (2002), the Court of Appeal has indicated
that sentencers should strive to avoid imprisoning women for offences of dishonesty
where the defendant is of previous good character and has childcare responsibili-
ties. This issue has been posed again in the context of a woman aged in her late
forties without prior record on conviction of benefi t fraud, specifi cally housing and
council tax benefi t. Having made lawful claims for these benefi ts from 1996 she
had failed to notify her change in circumstances in 2003 when her new partner
(subsequently her husband) moved in with her. When interviewed in 2004, follow-
ing an anonymous tip off to the authorities, she had claimed that her partner was
in fact her brother who lived in another part of the country but had been staying
with her for two or three nights a week while receiving hospital treatment. On the
strength of this falsehood she continued to receive benefi t. In 2007 she omitted
to inform the benefi ts agency that she had commenced employment. By the time
the truth became known the accumulated overpayment amounted to in excess of
£22,000, though she disputed that sum, maintaining that the correct calculation
was around £13,000. By date of sentence she had repaid only around £150.
By that stage she was no longer in employment as her husband’s ill-health now
required her to act as his carer. The pre-sentence report indicated that she had
adopted ‘an inappropriate problem-solving strategy to address her fi nancial diffi -
culties’ and noted her sense of shame and anxiety in anticipation of prison. She
was assessed to pose only a low risk of re-offending.
On her appeal against 20 weeks immediate imprisonment following late guilty
plea, the Appeal Court observed that even if account was taken of the fact that the
offender’s claim had been initially lawful and that the individual overpayments may
appear relatively trifl ing, coupled with the absence of prior convictions, an immedi-
ate custodial sentence was nevertheless justifi ed. This had been a very sustained
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fraud over many years and the money obtained had not been available for people
who were in greater need. The Court noted the starting point in cases involving in
excess of £20,000 – suggested by the Sentencing Advisory Panel but not yet the
subject of Sentencing Guidelines Council proposals – was 36 weeks custody, with a
range of 12 weeks to 18 months. The Court observed that ‘the only thing that might
have persuaded us that (immediate imprisonment) was inappropriate is the fact that
(she) is the sole carer of her disabled husband’. It also had regard to the ‘clang of
prison gates’ deterrent impact principle that in instances where immediate custody
is unavoidable sentence should be kept to ‘the shortest length possible’, noting that
she had been in custody already for two weeks. The Court reaffi rmed that:
. . . in relation to benefi t frauds in particular, we acknowledge, of course, that
no one should be sent to prison, unless there is no realistic alternative such as a
community penalty or the imposition of a suspended sentence, and even then not
for any longer than is absolutely necessary.
However, in the circumstances posed here neither the immediacy nor the
length could be considered wrong in principle and her appeal was dismissed. R v
RICHARDSON, March 2009 (not yet reported at time of writing).
Death by careless driving: Ambit of mitigation
Having parked in a lay-by to exercise her dog a woman aged in her early seventies
had sought to perform a U turn out of the lay-by onto a main road (speed limit being
60mph). That manoeuvre was very familiar to her but on this occasion, despite
good daytime weather conditions, she pulled out into the path of oncoming traffi c
including a motorcycle ridden by a man and his 11 year-old step-daughter who
collided with her, both sustaining fatal injuries. On her conviction of causing death
by careless driving the Crown Court heard that she had an unblemished driving
record dating from 1959 and prior to her retirement in 2005 had worked with
adults with learning diffi culties, including driving them by minibus. She had since
undertaken voluntary work in addition to her active role in family life with her grand-
children. She had told the PSR writer that she could not account for her driving on
this occasion other than that it had been a terrible misjudgement. She was assessed
to be ‘genuinely devastated’, accepting full responsibility and experiencing great
remorse. Her ‘lack of concentration and carelessness’ in failing to ensure that the
road was clear had not been ‘an act of malice’. The Crown Court also had regard
to moving victim impact statements.
On her appeal against 24 months imprisonment, the Court of Appeal observed
that her carelessness, though momentary, had approached the level of ‘dangerous
driving’, falling far below the standard of a reasonably competent driver and, as
indicated by the Sentencing Guidelines Council (SGC), the death of more than one
person generally serves as an aggravating factor. The SGC has specifi ed a starting
point in cases of this poor standard of driving of 15 months custody, with a range
between 36 weeks to 36 months. Taking account of her early plea, her otherwise
impeccable driving history, her considerable remorse and the fact that her age was
likely to make prison life ‘particularly harsh’ for her, the Court considered that the
In court 97
term imposed had been right at the upper end of the SGC bracket and had been
manifestly excessive. While the case was appropriately marked by a custodial
sentence, the Court concluded that a suspended term was more appropriate in
light of mitigation and so substituted a 39-week term suspended for 12 months.
In order to satisfy the statutory requirement that some form of requirement should
be attached to the order, the Court opted to require her to live at her usual and
permanent address.
Note: It seems fair to observe that the Court of Appeal approached the making
of the suspended sentence order in a somewhat tokenistic way to fulfi l the letter of
the relevant provisions under CJA 2003 s189(1) by specifying that the offender
should reside where she would be residing anyway. The Court may not have
appreciated that she would as a consequence be subject to the authority of ‘the
responsible offi cer’ whose approval would be required before the offender could
reside at any other place during the relevant period. As regards that ‘period’, the
Court also overlooked that it should have identifi ed a ‘supervision period’ within
the life of the ‘operational period’ for the order. No doubt the matter was dealt with
pragmatically on the basis of good sense but the case serves to illustrate that the
Appeal Court is not always familiar with the fi ne detail of community supervision
provisions. R v LARKE, April 2009 (not yet reported at time of writing).
Mitigation: Offence and offender-based
M. aged 21, without prior convictions and acknowledged by the sentencing judge
to be otherwise ‘a thoroughly decent young man from a good family, who went
about his everyday life in a perfectly reasonable fashion’, had been with others
in a Luton public house when an extremely drunk fellow customer, apparently un-
known to him, had slapped the bottom of a young woman standing next to him,
prompting an ‘exchange of words’ between the two men. The drunk had reacted
by throwing a glass bottle at M. before running outside, sticking up his fi nger at M.
as he did so. M. and others gave chase and on catching up with the drunk he had
punched him fi ve times while the drunk gripped his leg and then bit it, refusing to
let go. The other pursuers joined in with various blows and kicks to his head and
face, causing injuries requiring ambulance attendance and transfer to hospital,
though the drunken victim was aggressive, refusing treatment and discharging
himself against advice, saying that he did not wish to make a police complaint.
M. and his associates were nevertheless prosecuted for affray. On M.’s conviction
following guilty plea, the judge noted ‘splendid’ references attesting to his good
character but indicated that he had to make it clear to young men, no matter how
respectable their lives and backgrounds, that behaviour of this kind, captured on
the pub’s CCTV footage, is utterly unacceptable, whatever the provocation, and
must always merit a substantial term of...
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