R v Mark Adrian Leacock & Anor [2026] EWCA Crim 490

[2026] EWCA Crim 490Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 April 2026
Before
LORD JUSTICE STUART-SMITHSIR ROBIN SPENCERCOMMON SERJEANT OF LONDON(HIS HONOUR JUDGE MARKS KC)
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
REX
Between
MARK ADRIAN LEACOCKJUSTIN REIS
Mr P Ratliff appeared for Attorney GeneralMs N Carter appeared for Offender LeacockMr C Nelson appeared for Offender Reis
Approved Judgment
[1]His Majesty’s Solicitor-General seeks leave to refer sentences imposed on two offenders by Ms Recorder Presland sitting at the Inner London Crown Court on 5 November 2025. The first offender was sentenced to 30 months’ imprisonment for an offence of fraud, with concurrent sentences of 30 months’ imprisonment imposed in respect of the possession with intent to supply heroin and possession with intent to supply cocaine. The second offender was sentenced to 2 years’ imprisonment suspended for 2 years with a 25-day rehabilitation requirement.[2]The first offender, who is now 57 years old, had pleaded guilty to the offence of conspiracy to commit fraud at the PTPH. He had indicated an intention to plead guilty to the drug offences on his first appearance in the Magistrates’ Court. The second offender, who is now 46, pleaded guilty to the charge of conspiracy to commit fraud very shortly before the day that his trial was listed.[3]We give leave. The factual background[4]The offenders were part of an organised group which would call prospective victims from numbers that were withheld using the 141 function. The fraudster would be armed with the victim’s name, address, landline number and the identity of their bank. It is not known how the group secured those details. The fraudster would call the victim’s landline number and, using a false name, would purport to be from the fraud department of the victim’s bank. The fraudster would give the intended victim instructions to make their account ‘safe’, which involved handing over their bank cards to a purported courier who would know a password that the fraudster had given the victim in order to reassure them. The courier would arrive very shortly after and take the bank cards. It appears clear that the fraudsters would deploy a technique designed to keep the victims on the telephone in order to prevent them talking to anyone else while the courier travelled to them.[5]The victims were typically told to put their cards into an envelope and to sign the back of the envelopes. On occasion PIN codes were obtained. On one occasion a victim was called later the same day and told - in an effort to obtain the correct PIN - that the wrong PIN had been provided. The bank cards were then used to make high-value purchases at nearby shops, for items that could readily be re-sold by the group, such as AirPods, PlayStations and Ninja Blenders).[6]Six victims of the conspiracy to defraud, all living in the Surrey area, were identified:(i) Audrey Heard (92 years old), on 26 October 2024 lost £2,776.99;(ii) Janet Dewey (92 years old), on 13 November 2024 lost £2,000;(iii) Christina May (88 years old), on 13 December 2024 lost £500 in an attempt to secure £1,299;(iv) Gill Pounder (90 years old), on 26 November 2024 lost £1,399;(v) Declan Sullivan (75 years old, and diagnosed as suffering from dementia) on 15 January 2025, lost £849.30;(vi) Helen Hill (92 years old), on 26 February 2025 was subject to an attempt to defraud her that was unsuccessful when her daughter intervened. The total identified loss was £7,525.29.[7]In respect of the six cases set out above, the first offender was directly involved in each; the second offender was directly involved in three (the first, second, and third).[8]The first offender was identified making payments using the stolen debit cards. The second offender acted as a courier on at least one occasion. Another unidentified male also acted as a courier.[9]The handset attributed to the first offender had made a total of 2,517 calls to landline numbers between 12 December 2024 and 26 February 2025. The handset attributed to the second offender had made 2,981 calls to landline numbers between 1 October 2024 and 28 November 2024, using two different numbers that called the first and second victims.[10]The offenders were arrested on 22 May 2025 and were interviewed. Both answered “no comment” to all questions that they were asked.[11]Separately, on 22 May 2025 officers executing a warrant at premises in Croydon in order to arrest the first offender on suspicion of conspiracy to commit fraud, saw the first offender’s son throwing a black rucksack out of the window. On examination it was found that the bag contained a package containing 83.4 grams of crack cocaine, seven packages containing 176 grams of cocaine hydrochloride at 92 per cent purity, a package containing 53.8 grams of crack cocaine, a package containing 11.6 grams of heroin, a package which contained a further bag with 30 bags containing a total of 21.3 grams of crack cocaine and 229 bags containing 26.2 grams of crack cocaine. There was therefore a total of 11.6 grams of heroin, 184.7 grams of crack cocaine and 176 grams of cocaine hydrochloride and a combined total of 372.3 grams of Class A drugs. The estimated street value of the drugs was between £35,000 and just short of £37,000.[12]The first offender told the police that the rucksack belonged to him, and that he had shouted to his son to throw the bag out of the window. He stated he was holding the bag as part payment of a drug debt of between £3,000 and £4,000. He denied being a drug dealer. Evidence for the sentencing court[13]There were victim personal statements available to the sentencing court. In a victim personal statement Janet Dewey stated that she lived alone, and since the incident she was much more suspicious than she used to be, was more aware of who calls her and who was at her front door. She had had a video doorbell installed since the incident.[14]Gill Pounder had been registered disabled for 20 years. She used an electric wheelchair in her home and lived alone. She was now extremely wary of people who called at the door and was always tentative when the phone rang. The loss of £1,399 had significantly impacted her. The loss of the money made her fearful and worried for some time. The offending had had a knock-on effect on her family and their concern for her welfare which had caused her embarrassment.[15]Helen Hall described how she had recently been widowed. Her husband had dealt with things like dealing with the bank. The offending had left her “shaken…up, I almost feel abused”. Had her daughter not turned up she would have fallen for the scam. The incident had left her less trusting of people and more anxious:
“it’s a feeling I don’t like”
. Ms Hall stated that she had had to change her routine.

Antecedents

[16]Both offenders were seasoned fraudsters with appalling records including multiple convictions for frauds that were strikingly similar to the facts of the present case. Their previous record was in each case a serious aggravating feature. What made it much worse was that they had been co-conspirators in a markedly similar case in 2012, as we shall outline below. The first offender[17]The first offender had been convicted of 81 offences on 41 occasions between 1985 and 2021. Those included nine offences of fraud (between 1995 and 2021) and 36 acquisitive offences (between 1985 and 2016). Of most direct relevance:(i) On 13 December 2011, before the North Kent Magistrates’ Court, for an offence of fraud by false representation, he was sentenced to 120 days’ imprisonment suspended for 12 months. The first offender had attempted to purchase goods using someone else’s debit card;(ii) On 9 January 2012, before the Central Kent Magistrates’ Court, for offences of making a false representation, he was sentenced to 240 days’ imprisonment;(iii) On 7 September 2012, before the Crown Court at Guildford, for an offence of conspiracy to commit fraud, he was sentenced to 29 months’ imprisonment. This was an offence which he committed with the second offender. The offenders conned victims out of PIN codes and bank cards by pretending to be calling from their banks;(iv) On 11 January 2016, before the Crown Court at Croydon, for an offence of money laundering, the first offender was sentenced to 3 years’ imprisonment. The victim was a vulnerable adult whose flat was used by another male. The money in his bank accounts (some £33,000) were transferred to the first offender’s bank account;(v) On 15 March 2021, before the Crown Court at Maidstone, for an offence of conspiracy to defraud, the first offender was sentenced to 33 months’ imprisonment. The offending involved methods that were very similar to the offending subject in the present case, but it was committed in Kent. The conspirators cold-called elderly and vulnerable victims and purported to be fraud investigators. Five victims were identified. The conspirators told the victims that their accounts had been compromised and then attended the victims’ home addresses and convinced them to hand over their bank cards. The cards were used to make cash withdrawals and purchases in stores.[18]It will be immediately noted that two of the offences, those sentenced on 7 September 2012 and 15 March 2021 involved strikingly similar offending to the facts of the present case including preying on the elderly; and that the offence for which he was sentenced on 7 September 2012 was a strikingly similar conspiracy to defraud with the added feature that his co-conspirator was the second offender.

The second offender

[19]The second offender had been convicted of 43 offences on 29 occasions between 1995 and September 2023. These included six offences of fraud (2012 – 2017) and 11 acquisitive offences (1995 – 2023). Of particular relevance:(i) On 14 March 2006, before the Crown Court at Croydon, for an offence of assault occasioning actual bodily harm, he was sentenced to 8 months’ imprisonment, suspended for 18 months;(ii) On 12 March 2007, before the Crown Court at Croydon, for an offence of causing grievous bodily harm, he was sentenced to a 12-month community rehabilitation order. This was subsequently revoked for breach and a sentence of 8 months’ imprisonment was imposed;(iii) On 3 June 2009, before the Bromley Magistrates’ Court, for offences including battery for which a community order was imposed. This was subsequently revoked for breach and a sentence of 1 month’s imprisonment, suspended for 12 months was imposed;(iv) On 22 August 2011, before the Crown Court at Croydon, for offences of theft and assault occasioning actual bodily harm, he was sentenced to 9 months’ imprisonment, suspended for 24 months. This was later activated for breach, and a sentence of 6 months’ imprisonment was imposed on 7 September 2012;(v) On 7 September 2012, before the Crown Court at Guildford, for offences including conspiracy to commit fraud, he was sentenced to a total of 33 months’ imprisonment. This was an offence committed with the first offender. The offenders conned the victims out of PIN codes and bank cards by pretending to be calling from their banks;(vi) On 3 July 2014, before the Crown Court at Woolwich, for an offence of fraud the second offender was sentenced to 27 months’ imprisonment;(vii) On 29 July 2015, before the Crown Court at Croydon, for an offence of fraud he was sentenced to a community order. This was subsequently increased following breach;(viii) On 24 August 2016, before the South East London Magistrates’ Court, for offences including fraud, he was originally sentenced to a conditional discharge, which was subsequently breached and short sentences of imprisonment imposed. The first offender tricked an elderly victim into handing over a bank card and withdrew money using it;(ix) On 1 June 2018, before the Crown Court at Croydon, for two offences of fraud the second offender was sentenced to 8 months’ imprisonment. This offending included tricking an elderly woman with early onset of dementia to hand over their bank card and using it to withdraw money; and defrauding a second elderly woman in the same way;(x) On 10 April 2023, before the South East London Magistrates’ Court, for an offence of burglary with intent to steal from a non-dwelling, the second offender was sentenced to a community order. The second offender breached that order, which was directed to continue on 14 September 2023.[20]As with the first offender, it will be immediately noticed that three of the offences, those for which he was sentenced on 7 September 2012, 24 August 2016 and 1 June 2018 involved striking similarly offending to the facts of the present case including preying on the elderly. It will also be immediately noticed that the offence for which he was sentenced on 7 September 2012 was a strikingly similar conspiracy to defraud with the added feature that his co-conspirator was the first offender.

The proceedings

[21]We have described the varying stages at which the pleas of guilty were entered. When it came to the sentencing hearing the prosecution served a note for sentence in the course of which it is submitted that:(i) The fraud offence was culpability A and harm 3 moving up from harm category 4 to reflect the high impact on the particularly vulnerable victims. This would result in a starting point of 3 years’ imprisonment, with a range of 18 months to 4 years. The prosecution submitted that the case should be moved up within the range because the intended loss was far greater than the £7,000 that they had managed to steal.(ii) The first offender’s drug offences were category 3 significant role, with a starting point of 4 years and 6 months and a category range of 3 years and 6 months to 7 years.[22]On 17 November 2025, when the case was in the Warned List and shortly before trial the second offender said that he was going to plead guilty. He invited the Recorder to give a Goodyear indication. It was agreed that the offence involved high culpability and that although the amount stolen was in the region of £7,000, which suggested that it was category 4, the case should be placed in category 3 because of the high impact on the victims. The prosecution relied on the sheer number of phone calls made by the offenders, but the judge suggested that such a “scatter gun” approach lessoned the offender’s culpability.[23]The Recorder stated that relying on high impact was “double counting” because the vulnerability of the victims was taken into account in respect of culpability. The prosecution on that occasion agreed but noted that there were multiple culpability A factors. The Recorder also indicated that she considered that the case fell between the starting point of category A4 and the lower end of A3. The Recorder decided to afford the second offender 15 per cent credit for plea, because credit had been preserved on the previous occasion. The Recorder noted that the second offender had served 176 days on remand, which it was said the equivalent of a 440-day (fourteen-and-a-half month) sentence assuming release after serving 40 per cent of the sentence.[24]The Recorder indicated that as the second offender would only serve “another few weeks”, she was minded to impose a sentence which involved the offender’s release with probation involvement. The Recorder noted from the second offender’s antecedent record that he had little recent probation input. The second offender was then re-arraigned and pleaded guilty to conspiracy to defraud and the case was adjourned for sentence. So the gist of the indication was that a suspended sentence with additional requirements would follow the second offender’s plea of guilty.[25]For reasons which we shall provide below the Recorder’s approach that led to the giving of the Goodyear indication was flawed. While criticisms may be made of prosecuting counsel’s contribution to the submissions, we are not bound by the giving of the indication and it remains our obligation to determine whether the sentences ultimately passed by the Recorder were unduly lenient and, if so, whether this Court should intervene.[26]On 26 November 2025 the first offender submitted a basis of plea in relation to the drug offences, asserting that he had a drug debt and was holding the drugs for others in part satisfaction of the debt and that he did not, and was not, intending to sell the drugs to anybody else. After a Newton hearing, the Recorder rejected the suggestion that this was the first time he had been asked to hold drugs but accepted that there was no evidence that he had been involved in drug dealing himself. She rejected the prosecution’s submission that he had significant role, describing him as “trusted but that still makes him a stooge”. She placed his case in category 3 lesser role.[27]When sentencing the offenders the Recorder dealt first with the fraud charge, which she described as “extremely sophisticated in terms of your actions”. She determined that the offence was culpability category A but that the offenders were not at the top of the food chain. She then said:
“I do find, therefore that the fraud is very clearly an A3 offence which has a starting point of three years. That would be though if all factors of the Culpability A were present and if Category 3 were present in terms of value and so if this were a trial even taking into account your previous records, which I have to some extent taken into account by being very firm that this is a Culpability A offence so that is what has led me to really consider that this is a Culpability A offence is that neither of you are naïve, you have previous form for this but I do think I have to depart downwards from these starting points and I am going to go to 28 months. I find that both of you equally responsible in this even though there is a slight division of who was involved in which fraud against which person but you are sort of in this as partners in crime quite literally and so I have gone down from the three years because I do not want to double count the previous criminal record which has made me keep it in Culpability A and as I have said, in terms of value will go it as a Category 3, it is at the lower end of Category 3.”
[28]We note in passing that the Recorder appears to have thought that the starting point of 3 years for a category 3A offence of fraud would only be applicable if “all the factors of Culpability A were present and if Category 3 were present in terms of value.” For that reason she made a downward adjustment to the category 3A starting point from 3 years to 28 months expressly because as she said:
“I do not want to double count the previous criminal record which has made me keep it in Culpability A”
. She regarded it as coming at the lower end of category 3.[29]Addressing the second offender, she then said:
“Therefore, at trial you would have both got 28 months, for [the second offender] that is reduced to two years with the plea, so there is some credit on that and so that is the two-year sentence suspended for two years on the basis that you have already been in prison for the equivalent of 18 and a half months and I would much rather that you come out and you are going to have supervision by probation. You are going to have up to 25 RAR days, I know that there is no PSR, but I can give RAR days myself. I am also going to reserve any breaches of probation i.e. you not attending to RAR days to myself and then you will just to back to prison to serve the remainder of your sentence...”
[30]Turning to the first offender she then explained her sentence as follows:
“Now... with the fraud, because you are entitled to a bigger credit of 25% that goes down to 21 months, that would have been suspended, easily suspendible, I would have been happy to suspend that... Mr Leacock, there is the complicating factor of the drugs matter. I accept entirely that your lesser role in that, you are in up to your neck in drugs debt, you are not a kingpin, there is no evidence of financial thing and being a trusted safe house by a drug dealer does not mean you are trusted in the sense that you have a close relationship, this is a one way street because they trust you not to do a bunk, which is very different because nobody wants to have done a bunk with £35,000 worth of some very nasty people’s stuff. As I have said, I have found it is a lesser role and without previous for drugs I would have happily given you probably a two-year sentence suspended for two years, I would have taken the three-year starting point, I would not have gone down from it because of your previous criminality but you are entitled to a third discount on that so it would have been two years suspended for two years. I am in the position where you have got one 21 month sentence and one two-year sentence. I am not simply going to aggregate them because I have to take totality into account so the total of them is 45 months, I am going to reduce that by a third for totality given the complicating factors which I think is a fair reduction so that is a 30-month sentence. The way I am going to apportion that is effectively 16 months on the drugs and 14 months on the…I mean I can do it, what I am actually going to do is I am going to put 30 months concurrent on each so that is a two and a half year sentence.”

The Solicitor General’s submissions

[31]In relation to the fraud, the Solicitor General starts by identifying the relevant multiple factors demonstrating high culpability, namely:(i) the sophisticated nature of the offence and significant planning;(ii) fraudulent activity conducted over a sustained period of time;(iii) the very large number of potential victims targeted and the number of victims defrauded and(iv) deliberately targeting victims on the basis of vulnerability. In addition, there are the seriously aggravating features of each offender’s previous convictions, particularly those for strikingly similar offences of fraud and close involvement as part of the group, even if there are others higher up the chain than these offenders. Both offenders clearly fell within category A for multiple reasons.[32]In terms of actual loss, the Solicitor-General submits that the case falls into category 4 but the intended loss was far higher and of itself justified placing the case firmly in category 3. A finding of high impact with consequent adjustment to the harm categorisation was required on the basis of high impact on victims because of their particular vulnerability due to factors including age and, in some cases, their mental capacity. Accordingly, the Solicitor General submits that the correct starting point for the fraud offence for each offender was 36 months with a category range of 18 months to 4 years’ imprisonment.[33]The suggestion that the category 3A starting point only applied if all of the factors listed in the guideline under the heading “High Culpability” is submitted to be wrong. To the contrary, the existence of multiple factors as identified by the Solicitor General should have caused an upwards adjustment from the starting point on conventional and well-established principles. It is also submitted that the Recorder fell into error in her belief that there was a risk of double counting if vulnerability were treated as relevant to both culpability and harm. The contrary is established by the terms of the guideline, which makes it plain that it is necessary to consider the vulnerability of the victims under both headings. This has been authoritatively endorsed (see R v Wharf [2015] EWCA Crim 2320 at [9] and R v BAB [2024] EWCA Crim 712 at [34]).[34]Next, it is submitted that the Recorder’s suggestion that to treat the offenders’ previous convictions as aggravating features would be to double count because the previous convictions had informed the decision to conclude that the case fell within category A was submitted was wrong. The factors demonstrating high culpability were not dependent on the offenders’ previous convictions. Accordingly, it is submitted that the Recorder’s conclusion that an appropriate sentence after a trial for each offender would have been 28 months is wrong. The combination of multiple factors indicating high culpability and the seriously aggravating feature of the offender’s previous convictions should have had the effect of causing a significant upwards adjustment from the starting point of 3 years.[35]It is accepted that the first offender was entitled to a 25 per cent reduction for his plea to the fraud charge and one-third for his plea to the drug offences. The Recorder was entitled to allow the second offender a 15 per cent reduction for his plea to the fraud charge. The Solicitor General submits that there are no other mitigating features. The consequence of these submissions is submitted to be that the sentences imposed by the Recorder on the fraud charge were wrong in principle, leading to the imposition of sentences that were not merely lenient but unduly lenient.[36]Turning to the first offender’s drug offences, no criticism is made by the Solicitor General of the Recorder’s determination that the offences fell within category 3 and that he had a lesser role. On that basis it is submitted that the starting point was 3 years with a category range of 2 years to 4 years and 6 months. That said, the Solicitor General submits that the quantities of Class A drugs in the bag were well above the indicative quantities for category 3, such that the Recorder could have made an upward adjustment to the starting point.[37]The Solicitor General submits that the first offender’s previous convictions are an aggravating feature for the drug offences even though he had no previous convictions for drugs. There are no mitigating features beyond those that determined the categorisation of the offence. He is entitled to the reduction of one-third because he indicated his intention to plead guilty in the Magistrates’ Court.[38]On grounds of totality, the Solicitor General submits that it was appropriate for the sentences for drug offences to be served concurrently to each other. However, the drug offending did not have any connection with the fraud offence and the drug offences should have been ordered to be served consecutively to the sentence for fraud offences. If all sentences were to be served concurrently there needed to be a further uplift to the sentence for the lead offence - whichever might be selected to fulfill that role.[39]In relation to both offenders the Solicitor General’s primary submission is that sentences should have been passed that precluded the passing of suspended sentences. If that is wrong however, the Solicitor General submits that the seriousness of the offending was such that when balancing the various considerations under the Imposition Guidelines appropriate punishment could only be achieved by an immediate custodial sentence. In addition, there is evidence of poor compliance with court orders on the part of the second offender.

The first offender’s submissions

[40]The first offender accepts that vulnerability of victims is relevant both to culpability and to harm. On his behalf Ms Carter seeks to blunt the reference to vulnerable victims by suggesting that rather than vulnerable victims being targeted, it just happened that vulnerable victims were more likely to and did take the fraudster bait and suffer actual loss. In relation to the quantum, actual and intended, of the losses, the first offender points out that if moved up from category 4 to category 3 the actual loss falls very far short of the indicative amount of £50,000 for the category 3 starting point.[41]Turning to mitigation, the first offender submits that he does have mitigation. In particular, he has been acting as carer to his twin brother who has had the misfortune to suffer bilateral amputations of his legs. The first offender himself suffers from high blood pressure and kidney disease, although the evidence does not suggest that either is symptomatic or imminently dangerous. In addition, we have been provided with an extremely supportive letter from the charity “Only a Pavement Away” which speaks of his genuine determination to turn his life around and states that the charity has no hesitation in recommending him for employment through the charity. A short report from the Probation Service is also encouraging and supportive. In addition, the first offender challenges the Solicitor General’s submission that the Recorder did not treat the drug offending as adding to the length of the sentence she imposed.[42]In all oral submissions Ms Carter emphasised the fact that the first offender has now been released and is doing as well as could be hoped while released on licence.

The second offender’s submissions

[43]The second offender submits that his role should be regarded as less serious because he was only directly involved with three of the victims. He challenges the notion that he was involved in a group that can reasonably or accurately be described as an organised crime group and relies on the Goodyear indication given by the Recorder. He submits that far from being unduly lenient the sentence imposed on him was correct.[44]In oral submissions Mr Nelson concentrated on the process by which the Goodyear indication came to be given, submitting that it gave rise to an expectation on the second offender’s part that he would be dealt with by a suspended sentence order. We deal with this submission shortly by saying that while taking full notice of Mr Nelson’s criticisms of prosecution counsel, we are not bound by the Goodyear indication.

The proper approach to sentencing

[45]We are bound to say that we find much of the Recorder’s reasoning opaque. In four material respects she was clearly wrong in her application of the guidelines.[46]First, we accept the Solicitor General’s submission that there were multiple factors demonstrating high culpability as we have set out above. The Recorder was wrong to take the view that the starting point only applied if all the factors listed in the guideline were present. To the contrary, the presence of multiple factors as identified by the Solicitor General should have exercised significant upward pressure causing an upward adjustment of the starting point.[47]Second, as is acknowledged by the first offender, the vulnerability of victims fell to be taken into account both in respect of culpability and of harm. In the present case it was entirely appropriate when dealing with the fraud charge to move up from category 4 to category 3 on account of the impact on the victims, an integral element of which was their vulnerability.[48]Third, treating the offenders’ previous convictions, and most particularly their convictions for strikingly similar offences of fraud as double counting was wrong because the offenders’ previous offences did not determine or contribute to the proper categorisation of the case or its starting point. Instead, their previous records were seriously aggravating features that had to be taken into account when considering whether to adjust the starting point. On the facts of this case, each offender’s previous convictions should have caused a further upward adjustment to the notional sentence.[49]Fourth, we are not able to accept the Recorder’s expressed view that the making of large numbers of phone calls in their attempt to defraud the recipients of the calls which the Recorder characterised as a “scatter gun” approach in anyway lessens the culpability of the offenders. What is clear is that adopting the system which the Recorder rightly described as “sophisticated”, these fraudsters set out to defraud anybody and everybody who had the misfortune to be contacted by phone. At its lowest the phone calls were made in the hope and expectation of finding some potential victims who were sufficiently vulnerable to be fooled by their fraud.[50]We also note at this stage that it is clearly established that in a conspiracy case such as this the court should have regard to the intended as well as to the actual loss (see R v Samurio [2016] EWCA Crim 1948 at [25] to [27]). This reflects the terms of section 63 of the Sentencing Act 2020, which provide that:
“Where a court is considering the seriousness of any offence, it must consider— (a) the offender’s culpability in committing the offence, and (b) any harm which the offence— (i) caused (ii) was intended to cause, or (iii) might foreseeably have caused.” (Emphasis added)
(a) the offender’s culpability in committing the offence, and (b) any harm which the offence— (i) caused (ii) was intended to cause, or (iii) might foreseeably have caused.” (Emphasis added)

Pre-sentence reports

[51]There were no pre-sentence reports before the court below. We do not consider it is necessary to obtain any further pre-sentence report for the purposes of these references.

Discussion and resolution - the second offender

[52]We accept that the second offender only had direct involvement with the defrauding of three of the six identified victims in this case, whereas the first offender had involvement with all six. We do not however consider that this makes a significant difference when sentencing the offenders for their fraudulent conspiracy. Each was fully engaged in the operation of the fraud, as is indicated by the high number of calls made from the phones attributed to each offender. The fact that the second offender had direct contact with three of the six traced victims demonstrates that there is no material difference in the roles played and the responsibilities of the two.[53]The offence was correctly categorised as category 3A, the starting point was therefore 3 years and the category range 18 months to 4 years. In our judgment, the presence of multiple features demonstrating high culpability and the second offender’s previous record, including strikingly similar offences of fraud (one of which was committed with the first offender) demanded a significant upward adjustment from the starting point. Had the second offender had no relevant previous convictions, an increase for the presence of multiple factors could reasonably have been limited. But once his previous record is taken into account, we consider that an upward adjustment to close to the top of the category range was inevitable and necessary. In our judgment, an increase to 3 years and 9 months was the least that could reasonably have been imposed.[54]There is no significant mitigation available to the second offender other than his plea in respect of which he was held entitled to a reduction of 15%. That applied to a notional sentence of 3 years and 9 months would result in a sentence of just over 3 years and 2 months. Such a sentence would not be suspendible.[55]In our judgment any sentence that was capable of being suspended was not merely lenient but unduly lenient and incapable of justification: the contrary cannot reasonably be argued. This is not simply a matter of numbers and mathematical calculation. Standing back and reviewing the facts of the case as they concern the second offender, we are persuaded that the lowest sentence that could reasonably have been imposed on him was one of 3 years’ imprisonment. Discussion and resolution -

The first offender

[56]Viewed in isolation, we consider that the least possible notional sentence that could have been appropriate on the fraud charge in the case of the first offender would have been 3 years and 9 months before considering personal mitigation and the effect of his plea of guilty for the same reasons as applied to the second offender. Their paths then diverge because the first offender was entitled to a reduction on account of his guilty plea of 25 per cent, which would have reduced the notional sentence from 3 years 9 months to about 34 months which could then reasonably be shaded down to 2 years and 8 months to ensure that the sentence is the least that can properly be passed. We deal with personal mitigation below.[57]Turning to the drug offences. They were correctly characterised as category 3 lesser role. The starting point was therefore 3 years. We accept that he has some personal mitigation, including the impact on his brother, his stated determination to turn his life around and the considerable efforts evidenced by the character evidence that we have that was not available to the Recorder. His previous convictions are an aggravating feature, although they are not so potent in the context of drug offences as he does not have previous for similar criminality. Adopting the most generous approach, it may be said that his mitigation counterbalances the effect of his previous convictions. That brings us back to notional sentences of 3 years which fall to be reduced by one-third for his plea. Viewed on their own therefore, this exercise suggests that an appropriate sentence would be in the region of 2 years’ imprisonment as was identified by the Recorder.[58]Although the drug offending bore no relation to the fraud charge it is necessary to make an adjustment for totality when considering the standalone sentences of 2 years 8 months for the fraud charge and 2 years for the drug offences. In our judgment, this can most conveniently be achieved by reducing the sentence for the drug offences to 16 months and directing that the sentences for the drug offences (16 months) be served consecutively to the sentences for fraud (2 years and 8 months), resulting in an aggregate sentence of 4 years. The reduction of 8 months for totality ensures that we have arrived at the lowest sentence that could reasonably reflect the first offender’s overall criminality.[59]On our approach to the proper assessment of these sentences, it follows that the sentence of 30 months imposed by the Recorder on the second offender is not merely lenient but unduly lenient. Standing back, we are persuaded that, by a substantial margin, it is not possible to justify the sentence imposed on the first offender.

Disposition

[60]For these reasons:(i) In the case of the first offender, we quash the sentences imposed by the Recorder and substitute a sentence of 2 years 8 months for the fraud and 16 months for each of the drug offences. The sentences for the drug offences are to be served concurrently with each other but consecutively to the sentence for the fraud.(ii) In the case of the second offender, we quash the sentence imposed by the Recorder and substitute a sentence of 3 years’ imprisonment.