R v Cheryl Angela Graham, Albert John Whatley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Owen |
| Judgment Date | 22 October 2004 |
| Neutral Citation | [2004] EWCA Crim 2755 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200402967/A7 200401950/A7 |
| Date | 22 October 2004 |
[2004] EWCA Crim 2755
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Auld
Mr Justice Owen
Mr Justice Hedley
No: 200402967/A7 200401950/A7
MR L P MOLL appeared on behalf of GRAHAM
MR R CIFONELLI appeared on behalf of the CROWN IN THE APPEAL OF GRAHAM
MISS C DAVENPORT appeared on behalf of WHATLEY
MR S EARNSHAW appeared on behalf of the CROWN IN THE APPEAL OF WHATLEY
These appeals raise the issue of the appropriate sentence in cases of benefits fraud and, in particular, of the continued applicability of the sentencing guidelines set by this Court in Stewart (1987) Cr App R(S) 135. In granting leave in Whatley the single judge commented that:
" Stewart is generally regarded by sentencers as somewhat dated in the current climate of pervasive benefit fraud."
echoing the observation of Rose LJ in Bendris [2000] 2 Cr App R(S) 183 at 184:
"It may be that, in the not very distant future it will be necessary for this Court to reconsider the level of sentences indicated in Stewart in the light of the continuing and increasing prevalence of social security fraud during the 13 years since that case was decided."
The appeal of Whatley also raises again the question of the proper approach to sentence in a case in which a defendant has been convicted on a number of specimen or sample counts, a situation which will often arise in cases of benefits fraud.
The Stewart Guidelines . In Stewart the judgment of the Court was given by Lord Lane CJ. He pointed out that there had been a sharp drop in the number of prosecutions for social security offences between 1980 and 1981 and 1983/1984, and explained that this was attributable to a change of policy, adding that:
"Nowadays the policy is for cases involving small amounts not to be prosecuted except where there are special features such as repeated fraud, or the necessity to provide a deterrent to a particular type of fraud prevalent in a particular locality."
Secondly he observed that it was only a small proportion of offences of this nature that were dealt with in the Crown Court and that the deterrent effect of any Crown Court sentence was unlikely to be great. Lord Lane then indicated the appropriate level of sentence in such cases in the following terms:
"In some cases immediate unsuspended imprisonment (or youth custody) is unavoidable. At the top of the range, requiring substantial sentences, perhaps of two and a half years imprisonment and upwards, are the carefully organised frauds on a large scale in which considerable sums of money are obtained, often by means of frequent changes of names or address or of forged or stolen documents. Examples are Adams (1985) 7 Cr App R(S) 411, to which we have referred in the course of the appeals and applications today, and Dennehy which is a case in our list today.
These offenders are in effect professional fraudsters, as is often apparent from their previous records. They have selected the welfare departments as an easy target for their depredations and have made a profitable business out of defrauding the public in this way. The length of the custodial sentence will depend in the first instance on the scope of the fraud. Of course, as in all fraud cases, there may be a variety of mitigating circumstances and in particular a proper discount for a plea of guilty should always be given. These cases bear little relation to the average offender in this area.
As to the remainder, who form the great majority of those appearing in the Crown Court, the sentence will depend on an almost infinite variety of factors, only some of which it is possible to forecast … Other considerations which may affect the decision of the Court are: (i) a guilty plea;
(ii) the amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly;
(iii) the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning);
(iv) the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury;
(v) previous character;
(vi) matters special to the offender, such as illness, disability, family difficulties et cetera;
(vii) any voluntary repayment of the amounts overpaid.
Before sentencing the offender the court should consider the following questions which were set out in Clarke (1982) 4 Cr App R(S) 197 at 200: (i) is a custodial sentence really necessary? The fraud cases dealt with in the Crown Court (as already indicated) are likely to be relatively serious and a non-custodial sentence will often be appropriate; (ii) if a custodial sentence is necessary, can the court make a community service order as an equivalent to imprisonment, or can it suspend the whole sentence? It seems to us that a suspended sentence or (especially) a community service order may be an ideal form of punishment in many of these cases; (iii) if not, what is the shortest sentence the court can properly impose?
If immediate imprisonment is necessary, a short term of up to about nine or 12 months will usually be sufficient in a contested case where the overpayment is less than, say, £10,000."
Lord Lane's observations as to the aggravating and mitigation features of such offences do not require any modification. But there are three issues that have been raised for our consideration: first, whether the figure of £10,000 suggested by Lord Lane as a guide to the appropriate level of sentence should be updated; secondly, whether it remains the case that deterrence is a factor of limited application in such cases; and, thirdly, whether the guidelines reflect current sentencing practice.
The Effect of Inflation. As to the first there has been a substantial fall in the value of money since 1987. In Clark [1998] 2 Cr App R(S) 95, a case involving a theft and breach of trust, this Court adjusted the figures by reference to which guidelines were set in Barrick (1985) 7 Cr App R(S) 142, to take account of inflation. In Barrick Lord Lane CJ advanced guidelines defined by reference to the figures of £10,000, £50,000 and £100,000. In giving the judgment of the Court in Clark, Rose LJ said that:
"The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents of respectively £10,000, £50,000 and £100,000."
The Court went on to adjust the guidelines by reference not only to the effect of inflation on the guidelines in Barrick, but also to other considerations, such as the increase in the scale of white collar crime and the changes in the law with regard to remission and parole in the following terms:
"Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums of between £17,500 and £100,000, will merit two to three years; cases involving sums between £100,000 and £250,000, will merit three to four years; cases involving between £250,000 and £1 million will merit between five and nine years; cases involving £1 million or more, will merit ten years or more."
The decision in Clark is not only relevant to the need for sentencers to be aware of the effect of inflation on sentencing guidelines, but is also relevant to the relationship of sentences for benefit frauds to sentences for other types of fraud, a point to which we shall return. As to the effect of inflation, the inflation table in Kent and Kent Volume 1 0–1189 indicates that the current value of £1.00 in January 1987 is approximately £1.80. If the Stewart guidelines are to continue to apply, then plainly the figure of £10,000 should be revised.
The Deterrent Element. The second issue is whether it remains the case that deterrence is a factor of limited application in sentencing such offenders. In Stewart, and having considered the statistics as to such offences, and the policy adopted by prosecuting authorities, Lord Lane said:
"We have ventured to go into matters at some length to show that it is only a small proportion of offences of this nature which are dealt with in the Crown Court and to demonstrate that the deterrent effect of any Crown Court sentence is unlikely to be great. This is because any one minded to embark upon this sort of fraud, unless he had a large scale operation in mind, or the fraud is blatant, is unlikely to find himself in the Crown Court. If prosecuted at all, the run of the mill offence is almost certain to be before the Magistrates."
He continued at page 140:
"For the reasons we have mentioned earlier in this judgment, we do not think that the element of deterrence should play a large part in the sentencing of this sort of case in the Crown Court."
As Lord Lane said in Stewart, such offences are easy to commit and difficult and expensive to detect, as is illustrated by the facts of both the appeals before us. Furthermore, and as Rose LJ observed in Bendris, social security fraud is increasingly prevalent. In our judgment, there will be cases in which courts will be justified in taking the view that a sentence should contain a deterrent element.
Relevant Decisions Since Stewart . The third issue is whether the guidelines reflect current sentencing practice. As to that, it is first necessary to consider a number of decisions of this Court in cases of benefit fraud since the decision in Stew...
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