Darwin & Anor, R. v [2009] EWCA Crim 860

[2009] EWCA Crim 860Case No 2008/04311/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 27 March 2009
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE IRWIN
and
MR JUSTICE WIN WILLIAMS
Between
R E G I N ACrown- v -
Between
ANNE CATHERINE DARWINJOHN RONALD DARWIN
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr D E Waters QC appeared for Applicant Anne DarwinMr P Makepeace appeared for Applicant John DarwinMr A J Robertson QC and Miss G Gilchristappeared for Crown
J U D G M E N T
[1]This is a notorious case. Anne and John Darwin are a married couple of previous good character. Together they set up a fraudulent conspiracy. Its objective was to collect the insurance and pension money due to her on his death while he was still alive. So his death was faked, and she reported it as an accident. The deception worked. The money was collected and distributed between them. They told, or rather she on behalf of both of them, told many lies in furtherance of this objective and on their joint behalf she told and played out many falsehoods to their adult sons in order to ensure that the truth did not emerge and that the plans would come to successful fruition.[2]Their criminal partnership gave rise to a number of charges. On 13 March 2008, in the Crown Court at Teesside, before Wilkie J, John Darwin pleaded guilty to counts 1, 2, 3, 7, 8, 14, 15 and 17 in the indictment. On 23 July 2008, following a trial before the same judge and a jury, Anne Darwin was convicted of counts 1-14 and count 16 of the same indictment. On 23 July 2008 they were sentenced as follows. On each of counts 1, 2, 3, 7 and 14 (obtaining a money transfer by deception), Anne Darwin was sentenced to 78 months' imprisonment; John Darwin was sentenced to 75 months' imprisonment. On each of counts 4, 10, 11, 12, 13 and 16 (transferring criminal property), Ann Darwin was sentenced to 78 months' imprisonment; in relation to John Darwin, those counts were ordered to remain on the file in the usual way. On each of counts 5 and 9 (converting criminal property), Anne Darwin was sentenced to 78 months' imprisonment; those counts against John Darwin were ordered to remain on the file in the usual terms. On count 6 (using criminal property), Anne Darwin was sentenced to 78 months' imprisonment; that count against John Darwin was ordered to remain on the file in the usual terms. On count 8 (obtaining property by deception), Anne Darwin was sentenced to 78 months' imprisonment; John Darwin was sentenced to 75 months' imprisonment. On each of counts 15 and 17 (obtaining property by deception), John Darwin was sentenced to 75 months' imprisonment. All the sentences were ordered to run concurrently. Appropriate orders were made under section 240 of the Criminal Justice Act 2003.[3]Although on the face of it there were many more counts in which Anne Darwin was involved than her husband, it was accepted throughout that although the counts in relation to John Darwin when they were jointly charged should remain on the file, John Darwin was as guilty as she in relation to those counts which related to the laundering of the proceeds of the fraud.[4]The facts require some further public recitation. In 2002 the couple were suffering financial difficulties and were coming under pressure to meet their debts due to credit card companies and mortgage providers. This criminal conspiracy was their response to their financial problems. After several months of discussion, the first step of which we are aware occurred in December 2001 when a new life insurance policy was taken out on John Darwin's life.[5]Three months later, on 21 March 2002, John Darwin staged his apparent drowning at sea in a canoeing accident. From this moment onwards these two people lived a lie. In the evening of 21 March the police at Hartlepool received a telephone call from Anne Darwin reporting that her husband had gone missing after canoeing in the sea. The report of his disappearance led to a rapid, expensive and resource intensive air and sea search. Throughout the night the Coast Watch, the Coast Guard, Air Sea Rescue, North East Air Support Unit and the Royal National Lifeboat Institution conducted a co-ordinated search of the sea and surrounding coast line. We must pause briefly to note that one important consequence of the actions of the appellants to this date was that a number of individuals became involved in the unpleasant and potentially dangerous task of trying to find and rescue him. A team of police officers was then deployed to continue the search which carried on until the end of May 2002, when police divers searched a rocky area known in the locality as the Blue Lagoon. They found a paddle and section of a canoe. This was later identified by Anne Darwin as part of her husband's canoe.[6]In the meantime the appellants' sons offered their mother their immediate support. One travelled from Basingstoke to Hartlepool to be with her, and the second broke off a holiday in Canada to return home. Naturally the death of their father caused them both great distress. They were also concerned about their mother and the impact on her of the death of her beloved husband. When Mark arrived at the family home, she threw her arms around him, crying that she had lost him, that he had gone. She was sobbing uncontrollably. He felt that his world had been crushed. The sons also worried about how their mother would cope financially.[7]On 16 April 2002 Anne Darwin telephoned her insurers to advise them that her husband had been lost at sea. She sought to make a claim on the policy on his life. In August 2002 a body was found off the coast of Hartlepool. Anne Darwin was asked if she would go and identify it. However, before that happened it was established independently that the body was not that of John Darwin. When the police officer acting as the liaison officer informed her that it was not her husband's body, she broke down saying that she had wanted the body to be that of her husband so that he could be laid to rest.[8]Police inquires continued for many months. A witness appeal was made in September 2002. Anne Darwin contributed to the news release that was prepared.[9]On 10 April 2003 a Coroner's Inquest was conducted into John Darwin's death. Anne Darwin and her sons attended. The inquest concluded that her husband had probably encountered difficulties at sea as a result of which he died. An open verdict was returned. He was declared dead.[10]After the inquest Anne Darwin told the liaison officer that with these findings she and her sons would achieve closure and she would be able to get on with her life.[11]Thereafter, claims were made on the various insurance and pension policies. The sons did not know the details. Quite innocently so far as they were concerned, but as part of the process of laundering the couple's dishonestly acquired funds, from time to time sums were transferred into their accounts with their agreement for the purchase of Premium Bonds. Although the bonds were bought in their names, they were under no illusion that they all continued to belong to their mother. In total something in the region of £250,000 was paid out under the policies and pensions schemes. There are, of course, frauds on insurers which produce greater financial rewards for the criminal, but what the appellants obtained was sufficient to wipe out their financial problems and to enable them to achieve substantial long-term financial security.[12]Shortly after his disappearance, John Darwin returned home in disguise and continued to live in the area. He used the false identity of somebody who had died in childhood, and then lied his way into a new identity by obtaining a driving licence and passport and all the necessary documents required for modern living. Thereafter, he successfully managed to live with this false identity, undetected. At the same time Anne Darwin sold various properties in this country and enjoyed the profits. The money obtained by her was laundered through various carefully-structured transactions, including transactions involving John Jones, and eventually transferred to Panama. In due course she told her sons that she had set up a company in Panama of which she, her solicitor in Panama, and her sons were to be the directors. The company would be the legal owner of all her property in Panama and in this way Inheritance Tax would be avoided. She told her sons in 2006 that she would emigrate to Panama and settle there permanently. In October she formally emigrated to Panama. She took with her just over $1 million and left her sons with the impression that their widowed mother was now financially secure and settled in a new country of her own choice. In the meantime her husband had also taken himself to Panama. We do not accept that this was a relatively short-lived period of criminal activity. The sorting out of the dishonest accounts continued right up until mid-2007.[13]Probably because he wanted to resolve his relationship with his sons, on 1 December 2007 John Darwin flew back from Panama and walked into the West End police station in London and said that he believed that he was a missing person. He gave his correct name and claimed to be suffering from amnesia. He had no memory of anything after going on a cruise with his wife to Norway in 2000. He was released into the care of his two adult sons, and he persisted in this story to them. While staying with one of them he spoke to his wife in Panama. They apparently discussed what they would say to the police. He was arrested on 4 December. In the meantime, Anne Darwin had been approached by a member of the press in Panama. She was advised that she would be hounded by other members of the press and that he could assist her. She returned to this country on 9 December 2007. When she landed at Manchester Airport she was arrested.[14]It is clear on the evidence that the fraud only came to an end because they (or perhaps he) had had enough in the dislocation in their family life. Their return was not the consequence of remorse or a sense of guilt. What they were trying to do was to make up for the impact on themselves of the consequences of their own criminal activities.[15]Both appellants were interviewed. Both prevaricated. John Darwin said that he had gone missing in 2002 and turned up at the family home some years later. Anne Darwin said that her husband had gone missing in 2002, that she genuinely thought he was dead, but that he had then turned up on the doorstep in February 2003, that is before the inquest had taken place and the fraudulent claims were made.[16]When interviewed in early January 2008, John Darwin admitted that he had claimed money to which he was not entitled by pretending that he had died in an accident at sea. Faced with his statement, on the same day Anne Darwin admitted that they had staged his death in order to clear their debts by claiming funds to which they were not entitled. At an early stage John Darwin indicated his intention to plead guilty. Anne Darwin pleaded not guilty, and at trial relied on the defence of coercion by her husband. The defence was rejected by the jury.[17]The pre-sentence reports were unsurprising. The report on John Darwin concluded that he was extremely unlikely to re-offend. The report on Anne Darwin believed her to be at low risk of harm and re-conviction, although the author noted that she continued to minimise her behaviour and did not accept full responsibility for her role in these offences.[18]When passing sentence, the judge said that the evidence of the guilt of both appellants was overwhelming. They had been convicted of a "determined, sustained and sophisticated fraud" which was maintained over a number of years. He considered that John Darwin was the "driving force" behind the whole scheme which he had conceived, organised and encouraged his wife to continue over the years. However, although Anne Darwin played an "instrumental rather than an organising" role, her contribution was central to the success of the fraud. She played her part "efficiently" and "wholeheartedly". In effect, both operated as a team; they contributed their allotted skills and performed their due roles. The judge rejected the contention advanced by both of them that they had always intended that the sums obtained by fraud should be repaid. He believed that they intended to enjoy their new wealth until forced by legal processes to reveal it.[19]In addition to what may be described as the financial elements to this offence, the judge noted two additional features: first, the effort, risk and expenditure to which the initial fraud committed the various rescue services; and second, the impact on the appellants' sons who were, as the judge described, the "real victims" of the criminality, whose lives had been "crushed" by these events.[20]The judge considered the various sentencing decisions relating to frauds of a similar nature to this one, but he observed that this particular case was "virtually unique" on its facts. Although the sums involved were not as high as in other cases, what made this a particularly serious case was the duration and multi-facetted nature of the offending as well as its impact on the appellants' sons.[21]In relation to the discount for the guilty pleas properly available to John Darwin, the judge made a substantial discount, but not the full one-third discount normally appropriate for an early guilty plea because the evidence was so overwhelming. There was, of course, no such discount in the case of Anne Darwin.[22]The essence of the submission on appeal is that the sentences on both appellants fell outside the appropriate range for dishonesty of this kind. The case should not be approached, so it was argued, as a true breach of trust case. It was a fraud, no less, but no more. The sentence was too long because too much emphasis was placed by the judge on the appellants' deceit of their sons, and he made insufficient allowance for the available mitigation.[23]We turn briefly to deal with the broad matters of mitigation. Mr David Waters QC, on behalf of Anne Darwin, suggested that the judge had failed to achieve the appropriate balance of culpability between the two appellants. It is true that he concluded that John Darwin was the driving force in the enterprise, but Mr Waters suggested that the evidence about the powerful nature of John Darwin's character, the relationship between the two of them during the course of a 30 year long marriage, made him significantly more influential in the scheme than she was. The problem with this submission is that the defence of marital coercion was rejected by the jury, and the judge expressly found that Anne Darwin's involvement in the fraud was wholehearted. It is also plain from the facts as we have narrated them that after her husband's disappearance, it was she who brought the fraud to its intended fruition. In our judgment the judge's view that the appellants "operated as a team" was amply justified.[24]Mr Waters suggested that the judge had perhaps failed sufficiently to address the relatively short duration of Anne Darwin's criminality. We reject that submission on the basis of the evidence that the conspiracy was afoot by December 2001, when an insurance policy was deliberately taken out for the purposes of the fraud, and that it continued until June 2007 when the last of the financial arrangements which ended with the ill-gotten gains in Panama was completed. Mr Waters also suggested that after her initial lies on arrest, Anne Darwin had provided the police with reasonable assistance about the transactions with which she was involved, while maintaining her position in relation to the overpowering influence of her husband. These were not matters which would have complicated the continuing police investigation. The problem with these elements of mitigation can be simply described. To the extent that there is any mitigation arising from them, the judge will no doubt have taken them into account when he was making his overall assessment of the appellant's criminality.[25]We turn to the submissions about the mitigation available to John Darwin. The main mitigation was the guilty plea. Mr Makepeace suggested that he should have been given a full discount for his very early plea. As we have indicated, the level of discount actually given by the judge was substantial, if not quite the full one-third discount, and given what the judge reasonably described as the overwhelming nature of the evidence, the level of discount was not inadequate.[26]The essential argument which arises for consideration involves the judge's approach to the deceit by the appellants of their two sons. It is contended that the judge gave excessive weight to their involvement, taking the sentences outside the appropriate and well-understood range.[27]On one view, and the submissions for the appellants were, this was a fraud on insurance companies and other agencies, certainly financially dishonest, and although serious enough both in its scope and sustained dishonesty, and backed up by continuing falsehood, that is all it was. The prosecution was wrong to advance the financial fraud as a breach of trust case. However, as the judge himself did not treat it as such, we need not address that point. The suffering of the couple's sons could not, on this argument, be reflected in such a vast increase in the appropriate range of sentence for the deception perpetrated by the appellants on the fund-holding organisations. Some allowance may have been appropriate, but not the substantial allowance made by the judge.[28]In our judgment the judge was right to attach considerable importance to the way in which the sons of the appellants came to be involved in this fraud, and its impact on them. When the appellants were planning the fraud they had to consider -- and it is inconceivable that they did not consider -- the impact on their sons of the death of their father. For the fraud to work, the sons had to be fooled. They had to believe that they, and their mother, were bereaved. They were therefore bound to suffer all the natural grief and distress any child would feel when a beloved parent dies suddenly and unexpectedly and to offer all normal comfort and support to the surviving parent. The appellants must have appreciated that these would be inevitable consequences of the fraud they were planning, but they nevertheless went ahead with it. This was the grossest form of betrayal. That was the first stage. The second stage is no less important. When their plans had matured to fruition the appellants -- and it was both of them -- then used their sons, who we would emphasise were entirely innocently involved in the process, to help launder their ill-gotten gains to achieve the ultimate success of the fraudulent enterprise. They were integral to this process. They were treated as pawns in it. So the involvement of the appellants' sons had two distinct features: first, their innocent participation in the implementation of the fraud; and second, the inevitable and totally unnecessary emotional distress which they were caused.[29]In deciding the seriousness of any offence the court has always been concerned with the culpability of the offender and the harm consequent on his crimes. That principle is now encapsulated in statute in section 143 of the Criminal

Justice Act 2003, which provides:

"(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. (2) In considering the seriousness of an offence ("the current offence") committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to -- (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction. (3) In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor. (4) Any reference to subsection (2) to a previous conviction is to be read as a reference to -- (a) a previous conviction by a court in the United Kingdom, or (b) a previous finding of guilt in service disciplinary proceedings. (5) Subsection (2) and (4) do not prevent the court from treating a previous conviction by a court outside the United Kingdom as an aggravating factor in any case where the court considers it appropriate to do so."
[30]In cases like these the protection of the law cannot be confined to those who have lost financially as a result of fraud. The harm done to the human beings who may not have lost financially, but on whom the crime has had a devastating impact is legitimately and properly to be considered.[31]The appellant's sons were victims -- directly and unequivocally -- of their parents' dishonest scheme. In every case where the court passes sentence, the sentence must reflect the nature and extent of the impact of the crime on the victims. In this case, as in all such cases, the insurance companies and other agencies were the financial victims of the crime. However, in this case the appellants' sons were its human victims. After reflecting on the submissions, we have concluded that the way in which the judge approached the problem in relation to the sons of the appellants was justified, and indeed for that matter, although on a lesser scale, he was right also to reflect on the way in which the rescue services had responded to what was believed to be a genuine cry for assistance.[32]Since sentence was passed, the court has received a letter from one of the appellants' sons. It is not, so far as anyone can tell us, a letter written on behalf of both their sons, and we do not know, and shall not assume that the second son shares the sentiments expressed by his brother. That letter, in part, reads:
"The pain and anguish caused to me should not be used as [a] reason to lengthen their sentences. The crimes that they committed were against the insurance companies and the state. They have suffered greatly at the hands of the media and will suffer for the rest of their lives with the knowledge of the pain and stress caused to myself and the rest of the family."
[33]The problem posed by this letter is readily understood. Listening to the judge's sentencing remarks, it is unsurprising that one of the sons will have believed that his parents were being punished with a lengthy term of imprisonment because of the impact of their crimes on him. That is true. We can also understand how, as time passes, the natural love that a son has for his parents may lead him to forgiveness and understanding. However, when the court passes sentence, it does not exercise some kind of private revenge, which somehow should cease to operate once the victim's wishes for revenge, if any, are assuaged.[34]We have considered a number of sentencing decisions. We immediately acknowledge that sometimes they involve larger sums and shorter sentences, but none of the cases reflected the peculiar and specific aggravating features of this case. We have also reflected on the recently issued consultation guidelines from the Sentencing Guidelines Council -- Sentencing for Fraud, Statutory Offences -- as it illuminates these issues, and again acknowledge that the financial element of the fraud, taken on its own, would suggest a shorter sentence. For the reasons we have given this case cannot be limited to its financial element alone. In truth, it is a case with unique or virtually unique aggravating features.[35]The sentence imposed reflected the judge's view of the punishment appropriate for the culpability of the appellants, the harm they caused and the losses they inflicted. It was a severe sentence. We accept that the judge might, without criticism, have taken a slightly lower starting point than he did, and that the overall sentences would have ended up at a slightly lower level. But this experienced judge had presided over the trial, and the question for us is whether the end result in relation to each appellant's case was a manifestly excessive sentence. We have explained the considerations which have led us to the conclusion that in this particular case they were not and we shall shortly repeat them. The criminality and culpability was at a very high level. This was a long-drawn-out fraud, a scheme which needed sustained attention. The sums involved were not as great as in some cases, but the result of the fraud was to obtain every single possible penny which might be available following John Darwin's death, and it was sufficient to enable them then to secure their financial future. It only came to an end because they (or perhaps he) had had enough of the dislocation in their family life. Their return to this country was not the consequence of remorse or a sense of guilt, but an attempt to make up for the consequences which they were suffering as a result of their own criminal activities. Added to this, there are the unusual aggravating features of this fraud: the gross impact of their crime on their sons, and the involvement and use of their innocent sons to further their objectives. Both are significant aggravating features. Finally, although it operated at the beginning of the dishonesty, the misuse of the rescue services on pointless and expensive exercises added to the aggravating features.[36]In these circumstances, we do not think it appropriate to interfere with the decisions reached by the trial judge, or to conclude that his eventual sentence on each appellant was manifestly excessive. Finally, as between the two appellants, the differences in sentence fairly reflected their relative culpability, and the allowance to be made for the guilty plea by John Darwin.[37]The appeals are dismissed.