Atkinson, R. v

THE RECORDER OF CARDIFF: On 20th February 2009 at the Bradford Crown Court, this appellant was sentenced to a total of 12 years' imprisonment for five offences of obtaining a money transfer by deception, two offences of fraudulent trading, an offence of fraud by false representation and an offence of theft. Unfortunately, the sentencing judge's remarks include no specific references to any individual starting points or to any sentencing authority. We consider it particularly unfortunate that in a case of this magnitude and importance to a considerable number of losers no reference was made to the guideline case of R v Clarke [1998] 2 Cr App R(S) 137, or the basis upon which there was a significant departure from the guidelines set out therein.

Allowing for maximum credit for plea, as expressly given, the sentence of 12 years means that 18 years would have been the appropriate total at the end of a trial. We note that 133 similar offences of dishonesty were taken into consideration and a direction was made pursuant to section 240A of the Criminal Justice Act 2003, to the effect that 14 days should count against the total sentence to reflect an electronically tagged and curfewed period on bail.

The appellant's offending was dealt with in two indictments. The first indictment charged a single count of obtaining a mortgage in the sum of £34,395 in his parents' name, without their knowledge. The remainder of the appellant's offending, with the exception of the theft of his brother's credit card, however charged, related to what in effect was a "Ponsi" scheme. Investors were attracted by the offer of high rates of return which were satisfied in an unsustainable manner out of the investments of those attracted subsequently. Eventually the scheme collapsed. It was the prosecution case that the appellant took something of the order of £400,000 to £500,000 from the scheme for himself.

Some investors lost their life savings and two went bankrupt. Others had to sell their homes. Much suffering was caused as is graphically illustrated by the contents of the victim personal statements which we have read.

The appellant was of previous good character. He had pleaded guilty at the first available opportunity and was entitled to credit to the extent of one third of the total sentence passed as a result. There had been a suicide attempt and he had some health problems.

The appellant is now aged 38. There was a significant delay between his arrest and sentence. In granting leave to appeal the single judge whilst, and we agree with the comment, identifying the appellant's principal criminal activities as "a heartless" fraud, described the sentence of 12 years' imprisonment after a guilty plea as too high. As we have mentioned, such a sentence proceeds upon the basis that at the end of the trial, a sentence of 18 years' imprisonment would have been appropriate. Such a sentence would have been seriously out of step with the general level of sentencing for offending of this type and indeed, the approach laid down by this court in R v Clarke, where 5 to 9 years at the end of contested proceedings was identified as the appropriate starting point for frauds in sums of £250,000 and £1 million. That was however in 1998 since when there has been some fall in the value of money. In R v Clarke the Vice-President stressed that the brackets referred to are guidelines only. Relevant to the instant case, he also identified that where sums are stolen on more than one occasion or dishonesty is directly at more than one victim or group of victims consecutive sentencing may well be appropriate. This appellant was responsible for a substantial fraud. Gains obtained a sum of the order of £400,000 to £500,000. Losses were caused investors of the order of £700,000. The fraud was persisted in over a significant period and the appellant was its sole architect. The consequences to small investors, who trusted this appellant were grave.

Bearing all of that in mind, we consider that the total sentence of imprisonment at the end of a trial, in relation to the "Ponsi" scheme offending should have been of the order of 7 years' imprisonment. A discount for plea would reduce that to about 5 years.

The offending against the appellant's own family was mean and separate. It merits a consecutive sentence but regard must be had to totality. Consecutive sentences totalling 1 year are, in our judgment, justified in relation to that aspect of the appellant's offending. The total sentence arrived at is therefore 6 years in the light of the appellant's pleas, representing a notional total sentence of 9 years at the end of a trial. We will therefore quash the sentences of 2 years' imprisonment on indictment T20080455 and substitute a sentence of 12 months' imprisonment. In relation to indictment T20080456, as for counts 1 to 4, we quash the sentence of 5 years' imprisonment and substitute sentences of 3 years' imprisonment. In relation to counts 5, 6 and 7 on that indictment, we quash the sentence of 4 years' imprisonment and substitute sentences of 2 years' imprisonment. In relation to count 8 on that indictment, we quash the sentence of 12 months' imprisonment and substitute a sentence of 8 months' imprisonment. Sentences on indictment T20080455 of 12 months and the sentence on indictment T20080456 (count 8) of 8 months' imprisonment will be concurrent with each other but consecutive to the sentences on indictment T20080456. The sentences on counts 1 to 4 and 6 to 7 on indictment T20080456 will be concurrent within those groups but consecutive between each group. That is two groups of concurrent sentences, one of 3 years' imprisonment and one of 2 years' imprisonment respectively, totalling 5 years. The total sentence substituted is one of 6 years' imprisonment. The 14 day direction pursuant to section 240A of the Criminal Justice Act 2003 is unaffected.

LORD JUSTICE RIX: Therefore, made up as my Lord has directed, this appeal is allowed and the total sentence of 6 years less the 14 days taken into account is substituted.