Appeal Against Sentence By Terence Ryan
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Turnbull |
| Neutral Citation | [2014] HCJAC 106 |
| Year | 2014 |
| Court | High Court of Justiciary |
| Date | 29 August 2014 |
| Published date | 23 October 2014 |
| Docket Number | HCA/2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Brodie Lord Turnbull
| [2014] HCJAC 106 HCA/2014/2817/XJ
OPINION OF THE COURT
delivered by LORDBRODIE
in
APPEAL AGAINST SENTENCE
by
TERENCE RYAN
Appellant;
against
PROCURATOR FISCAL, ABERDEEN
Respondent:
_____________ |
Appellant: D Moore, advocate; Faculty Services
Respondent: Cleland, advocate depute ad hoc; Crown Agent
29 August 2014
[1] This is an appeal against sentence by Terence Ryan who pled guilty before the sheriff at Aberdeen at a trial diet on 8 May 2014 in respect of a charge brought on summary complaint which was in the following terms:
“Between 6 April 2009 and 11 June 2012 both dates inclusive at [an address] you TERENCE CHARLES RYAN did knowingly fail to give prompt notification in the prescribed manner to the Department of Work and Pensions the prescribed person, of a change of circumstances which you knew affected your entitlement to benefit or other payment of advantage namely Incapacity Benefit, as defined in the aftermentioned Act, in that you failed to report that you were working as a self-employed driver and you did thereby obtain Incapacity Benefit of £13,000 to which you were not entitled; CONTRARY to the Social Security Administration Act 1992 section 111A (1A)”
[2] The case was continued for sentence until 5 June 2014. The appellant was admitted to bail. On 5 June 2014, the sheriff heard the appellant’s agent in mitigation. It is clear from the sheriff’s report that the submissions were in very full terms. They are summarised in the note of appeal. Among the points made was that the appellant had offered to pay the full amount of £13,000 immediately as a lump sum but the Department of Work and Pensions had insisted on a periodical payment which the appellant was currently paying (at a rate, so we were advised by Miss Moore who appeared on behalf of the appellant, of £85 per month). Moreover, the appellant has the tenancy of a specially adapted house and a sentence of imprisonment would put that tenancy at risk. Before the sheriff it was submitted that the case should be dealt with by a non-custodial disposal, the suggestion being a level 2 community payback order. Having heard the appellant’s representative in mitigation, the sheriff imposed a sentence of 5 months imprisonment. In what is a full and careful report, the sheriff explains his reasoning. He had regard to the sentencing guidance available from the cases of Gill v Procurator Fiscal, Glasgow [2010] HCJAC 99, 2011 SCL 164 and Bradley v Procurator Fiscal, Falkirk [2010] HCJAC 136. The sheriff explains that he restricted the period of the custodial sentence to 5 months in order not to put the appellant’s tenancy at risk. He makes the point that, having regard to the date when the offending commenced, a community payback order would not have been competent.
[3] A note of appeal was lodged on 12 June 2014 and the sheriff admitted the appellant to bail on 13 June 2014.
[4] Before us, Miss Moore first referred to the form 19.18 in which there is set out an articulate statement of reasons in support of the appeal. That document reiterates the principal points made in the plea in mitigation which was presented before the sheriff. It draws attention to the fact that in 1998 the appellant suffered a serious industrial injury as a result of which he was assessed as 50% disabled. He was not at that time assigned an adviser by the Department of Work and Pensions to provide him with guidance as to his entitlement to benefit. He suffered depression which continued until at least 2009 and while it was accepted that from April 2009 he had begun delivery driving for a friend, at that stage he was under the impression that he could work 20 hours per week without that affecting his entitlement, albeit that he failed to clarify the position with the Department of Work and Pensions. The appellant was repaying the Department of Work and Pensions the £13,000 wrongly claimed. The appellant was remorseful. It was submitted that the sheriff’s approach was flawed. That latter point was developed by Miss Moore in argument. She referred us to the case of Gill and also the case of Bradley, submitting that the sheriff had not properly applied the guidance to be found there. She further submitted that the sheriff had not been entitled to come to the conclusion that the appellant was not suited for the imposition of a requirement for unpaid work. A community payback order might be incompetent but, Miss Moore reminded us, it was open to the court to impose a probation order with a condition that the appellant carry out unpaid work.
[5] Before going further, we would like to clear two matters out of the way. As the sheriff observes in his report, it was said on behalf of the appellant in the course of the plea in mitigation and repeated in the note of appeal that the appellant did not fully understand what he was entitled to claim by way of social security benefits and how any work he was doing might impact on that. Although not elaborated by Miss Moore in her oral submissions, a suggestion to that effect also appeared in the written presentation of reasons in support of the grounds of appeal which is to be found in the form 19.18. On this point we entirely agree with the sheriff. The appellant pled guilty to a charge of knowing failure to give prompt notification of a change in his circumstances over a specified period of time. Having done so, it was not open to him to claim any degree of ignorance, excusable or otherwise, as to what he should have done.
[6] A further point taken on behalf of the appellant was equally without substance. The appellant had not been served with a notice of previous convictions. Although eventually withdrawing the point, Miss Moore had initially maintained that as a result the appellant should have been treated by the sheriff as a first offender. That is not the law where, as here, the information as to previous offending is disclosed in a court-ordered report and the appellant and his advisers have the opportunity to challenge anything in that report which they claim to be inaccurate: Sharp v Stevenson 1948 SLT (Notes) 79, Sillar v Copeland 1966 JC 8, Penman v HMA 1999 SCCR 740 at 744. Miss Moore accepted that it was clear from the terms of the sheriff’s report that the appellant’s agent had discussed the appellant’s previous offending with the sheriff and that accordingly the opportunity had been available to challenge any inaccuracy. Accordingly, the information was properly before the sheriff and he was fully entitled to have regard to the appellant’s previous offending history when considering sentence.
[7] We consider that there was more force in Miss Moore’s submission that the sheriff’s approach to the question as to whether an alternative to custody could and should be considered and to the further question as to whether in fact such an alternative was realistically available was flawed.
[8] The sheriff had had accurately identified Gill v PF Glasgow supra as providing guidelines to sentencing in cases of this sort. He also mentioned Bradley v PF Falkirk supra, where Gill was considered. In Gill, the court had been referred to the English Sentencing Guidelines Council’s Definitive Guideline on Sentencing for Fraud – Statutory Offences. In the Definitive Guideline the nature of the offence is categorised by the amount obtained by the fraudulent behaviour. In respect of cases where the amount obtained is in the range £5000 to £20,000, a “starting point” is identified at the middle of the range figure of £12,500. Where the behaviour is not fraudulent from the outset but the fraud is carried out for a significant period (a case such as the present) the Definitive Guideline indicates a starting point sentence of 6 weeks with possible...
To continue reading
Request your trial