Stone, R. v [2013] EWCA Crim 723

[2013] EWCA Crim 723Case No 2013/0938/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 25 April 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE RODERICK EVANS
MR JUSTICE TURNER
Between
R E G I N ACrownv
Between
DAVID STONE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Schofield appeared for Applicant
J U D G M E N T

LORD JUSTICE PITCHFORD:

On

[1]29th November 2012 in the Crown Court at Wolverhampton and again on 13th December 2012 at the same court, the applicant pleaded guilty to a variety of offences amounting to benefit fraud. Count 35 charged him with dishonestly making a false statement, contrary to section 111A(1)(a) of the Social Security Administration Act 1992 and counts 36 to 46 inclusive charged him with an offence of dishonestly causing or allowing to be produced or furnished a document which was false in a material particular, contrary to section 111A(1)(b) of the 1992 Act. The maximum sentence for each of the offences to which the applicant pleaded guilty was seven years' imprisonment. The applicant was sentenced on 30th January 2013 by His Honour Judge Challinor to concurrent terms of 12 months' imprisonment. Other charges on the indictment found in counts 25 to 34 were by agreement left on the file. In addition, there was imposed a victim surcharge order in the sum of £100.[2]These offences were committed in consequence of a joint enterprise between this applicant and his long term partner, Jade Brown. She too pleaded guilty to a variety of such offences relating to the same course of conduct and she was dealt with by way of a suspended sentence order for 12 months' imprisonment, suspended for 18 months, together with supervision, unpaid work and specified activity requirements.[3]The applicant's application has been referred directly to the full court by reason of the imposition of a victim surcharge order to which we shall refer later in this judgment.[4]There has recently been received by the Registrar a letter from the applicant's solicitors indicating that the applicant himself was minded to withdraw his application for leave to appeal against his sentence. In view of the suspected unlawfulness of the victim surcharge order, the Registrar invited the solicitors to make contact with the applicant for the purpose of obtaining confirmation of his instructions. This morning Mr Schofield, counsel who drafted the advice and grounds of appeal against sentence, informs the court that it has not been possible to make contact with the applicant personally. Mr Schofield stands by the grounds of appeal drafted by him and he has invited the court to consider them in the usual way. Having considered this turn of events, it seems to this court that we should entertain Mr Schofield's submissions and we have done.[5]It is not necessary for present purposes to descend to the detail of the offending which the applicant admitted. In summary, between August 2008 and June 2012 the applicant and his partner dishonestly claimed several different benefits in consequence of which £21,834.55 was paid out to them. They had been in a relationship for some six years and they had two children together. Fraudulent claims were made for housing and council tax benefit from a number of addresses both in Wales and the West Midlands. They made further fraudulent claims for income support and job seekers' allowance. They were fraudulent from the beginning, as the applicant's co-accused, Miss Brown, claimed that she was a single parent living alone, when as a matter of fact she was living in the same household as the applicant. The housing, council tax and income support claims were submitted by Miss Brown with however the applicant's knowledge and to the benefit of each of them. In his own name the applicant submitted a false statement for the purposes of claiming job seekers' allowance because he was throughout employed, save for short periods. The applicant accepted that he was acting together with his partner during the course of these frauds.[6]In his sentencing remarks the judge observed that these were serious frauds with which the public was rightly concerned. In this particular case the concern rested not just with the total sum of money obtained, but with the manner in which the fraud was performed by means of the production of forged documents and a considerable degree of deception which he described as in some instances "almost breathtaking". Nonetheless, the judge accepted that this was not a case of mere greed, since there was no evidence of a lavish lifestyle, but what the accused had done was to enhance the quality of life of their own family at the expense of those who were properly entitled and the taxpayer. The judge took account of the fact that they would be pursued for repayment of the money in all probability by instalments long into the future.[7]The judge noted the sentencing guideline for statutory offences of fraud. He took a starting point of 15 months and noted a range of 18 weeks to 13 months' custody. Having regard to the degree of deception involved, he elected to take a starting point of 15 months and to afford some credit for late pleas of guilty. For that reason the ultimate sentence imposed was one of 12 months' imprisonment.[8]The applicant had no previous convictions, save for driving offences. The author of the pre-sentence report noted that the applicant was fully aware that what he had done was dishonest and that he accepted his full responsibility. He had been in regular employment and at the time of his conviction he was a part-time school caretaker at his children's school.[9]There are three grounds of appeal. It is argued that the starting point taken by the judge was too high. Secondly, that the applicant received insufficient credit for his pleas of guilty. Thirdly, insufficient weight was given to his personal mitigation.[10]As we have noted, the judge made specific reference to the Sentencing Guidelines Council Guideline for Benefit Fraud. The category of fraud which the judge was considering is labelled:
"fraudulent from the outset and either fraud carried out over a significant period of time or multiple frauds."
Where the sum obtained is between £5,000 and £20,000 the starting point recommended is 12 weeks' custody with a range of a community order to 12 months' custody. The loss in the present case was £21,000. When the sum obtained is between £20,000 and £100,000, the starting point recommended is 15 months' custody with a range of 18 weeks to 30 months' custody. Mr Schofield submits that the guideline should be applied in a proportionate manner. A starting point of 15 months is expressly based upon a loss of £60,000, three times that in the present case.[11]In our view, Mr Schofield's reading of the guideline is incomplete. We agree that the table should be applied proportionately. There is however an element of judgment to every sentence which is passed. The guidelines says at paragraph 4 on page 25:
"Where the value is larger or smaller than the amount on which the starting point is based, this should lead to upward or downward movement as appropriate."
In this case however the applicant's offences were, as the judge correctly observed, more serious than the category in which the starting point was being assessed. This was not offending in which the frauds had been carried out over a significant period or in which the frauds were multiple. They were plainly both and, the judge found, the deceptions used in order to carry out the fraud were manifest. We note that the fraud was carried out during a four year period, ranged across four different benefits, the deceptions were renewed on each change of address and the applications were supported by forged and false documents. Furthermore, they were determined, as judged by the steps which the applicant took to avoid discovery. We do not in these circumstances consider that the judge was wrong to take the starting point of 15 months which he did. It is submitted that from a starting point of 15 months the applicant should have received a greater discount for his guilty pleas. Precious little justification was attempted by Mr Schofield, even in writing. The applicant had tended acceptable pleas only on the day listed for trial. In the mean time, the prosecution had been required to line up the evidence required to demonstrate that the applicant and Miss Brown were one household. That evidence largely comprised communications with his own employers. It seems to us that credit of 20 per cent was appropriate and justified.[12]The applicant's personal mitigation comprised his young family, his good work record and ultimately his acceptance of full responsibility. Unhappily, however, he had for several years been deliberately practising fraud on the public in order to better himself and his family at the expense of others. We do not consider that his personal mitigation should inevitably have reduced the starting point below 15 months before credit was given for his pleas. Despite the fact that this was the first time the applicant was ordered to serve a custodial sentence, we cannot in the result conclude that it was manifestly excessive.[13]We turn therefore to examine the lawfulness of the victim surcharge order of £100. Four of today's appeals, of which this is one, raise the question whether a victim surcharge order was properly made and, if not, whether the court has jurisdiction to quash it.[14]A victim surcharge order which a court is required to make under the relevant Criminal Justice Act 2003 statutory instrument upon sentencing a convicted person, the first question which arises is whether such an order may be appealed under section 9 or section 10 of the Criminal Appeal Act 1968. For these purposes the term "sentence" is defined in section 50(1) of the 1968 Act which provides:
"(1) In this Act 'sentence' in relation to an offence includes any order made by a court when dealing with an offender ..."
There follows a list of orders explicitly within that definition. They are given by way of example. An order for payment of prosecution costs is not one of those listed, but the court has held that it is subject to appeal. So also has the court held that a compensation order is subject to appeal. In our judgment, the opening words of section 50(1) are plainly wide enough to embrace a victim surcharge order and we entertain no doubt that an order wrongly made is subject to appeal to this court.[15]The history of such orders can be summarised as follows. No victim surcharge order could be made or can be made when any of the offences for which an offender falls to be sentenced was committed before 1st April 2007. Where sentence is imposed in respect of offences which were all committed between 1st April 2007 and 30th September 2012, a victim surcharge order of £15 must be imposed if a fine forms part of the sentence. That is a consequence of the Criminal Justice Act 2003 (Surcharge) (No 2) Order 2007, SI 2007/1079. Thirdly, where an offender is sentenced for offences which were all committed after 1st October 2012, a victim surcharge order must be made in every case, with the exception of absolute discharges or disposals under the Mental Health Act 1983. That is a consequence of the Criminal Justice Act 2003 (Surcharge) Order 2012 SI 2012/1696.[16]On an appeal to this court in which no victim surcharge order has been imposed as it should have been, this court will have no power to make such an order if the effect would be to increase the ultimate overall penalty. This therefore provides a useful opportunity to remind the Crown Court that care needs to be taken to impose the appropriate victim surcharge order by reference to the requirements which we have summarised.[17]The Court has been asked by the Registrar to express its view as to the manner in which challenges to a victim surcharge order might be handled at the stage of consideration of an application for leave. In our view, the procedure which has been adopted on previous occasions when similar problems have arisen is appropriate here. The application for leave to appeal against sentence should be considered by the single judge on the papers in the usual way. If leave to appeal on other grounds is given, the appeal will be listed before the full court for oral argument. If, however, the only ground upon which leave is given is the wrongful making of a victim surcharge order, then unless the application for leave is renewed on other grounds, the case should be listed as a non-counsel hearing at which the quashing of the victim surcharge order, if it is indeed unlawful, can be made publicly.[18]In the current appeal there is one respect in which we conclude that the appeal must succeed. The victim surcharge order of £100 was imposed but these convictions were covered by the Criminal Justice Act 2003 (Surcharge) Order 2007. Under Article 3, paragraph 2, of the order the VSO was due only if the sentence imposed included a fine. This sentence did not. Accordingly the VSO must be quashed and to that extent only the appeal is allowed.

Cited in 2 later judgments