R v Anthony Gates

MR JUSTICE MARTIN SPENCER: By leave of the single judge the appellant appeals against his sentence of 14 months' imprisonment imposed by His Honour Judge Stephen Climie sitting in the Crown Court at Exeter on 25 July 2025 for an offence of fraud committed contrary to section 1 of the Fraud Act 2006. The single point of appeal is whether that sentence should have been suspended.

The fraud committed by the appellant arose from the will and disposition of royalties of Terry Walsh, a highly successful stuntman and stunt coordinator who featured in numerous British television programs from the early 1960s, such as Dr Who, until his death in 2002.

Terry Walsh had three children: Tony Walsh, Sean Walsh and Casey Worrall to whom the appellant was married until they separated and divorced in 2007.

By his will, Terry Walsh provided for the royalties from his work to be paid into a bank account and distributed equally between his three children. Terry Walsh appointed the appellant to be the executor of his will and to be responsible for the royalty account in the hope that he would have an unbiased position and manage things fairly. The appellant remained responsible for the royalty account even after the divorce.

Over a significant period of time the appellant defrauded Terry Walsh's children of the royalties to which they were entitled under the will. Between 2007 and 2013 the beneficiaries received very few payments from the royalty account. When confronted about the limited payments, he claimed that the account was drying up and that there was very little money coming in. He also told the family that there was a cap of 25 years after which royalties would cease. This was a lie but at the time the family had no reason to question what they were being told.

It was accepted by the court below and we accept that the overall value of the amount of royalties of which the victims were defrauded was a figure between £30,000 and £34,000.

In around 2014 Shelley Gates, the daughter of the appellant and Casey Worrall and the granddaughter of Terry Walsh, offered to take over as executor of the royalty account but was put off doing so by her father who said it would be pointless as the account was drying up. She had suspicions about the appellant's claim about the 25-year cap and in April 2022 when visiting the appellant's house she discovered a Halifax bank statement relating to the royalties account which showed a payment and withdrawal of the sum of £850 the previous month and which indicated that, contrary to what the appellant had told the family, royalties were in fact still being paid.

She made enquiries with companies such as the BBC and ITV who confirmed that payments were still being made into the account. Even when confronted by her about the withdrawal of money from the account, the appellant denied any wrongdoing and claimed that the account had been closed for a long time. Even though the game was effectively up, when interviewed by the police in October 2023 the appellant denied benefiting from the royalty account asserting that he had distributed the money in cash to Terry Walsh's three children. However he was unable to explain why significant sums of money had been transferred to accounts in his name. This puts into context the suggestion that he is truly remorseful.

At the sentencing hearing it was accepted that the offence fell within Category 3A of the sentencing guideline with a starting point after trial of three years and a sentencing range from 18 months' custody to four years' custody.

The following mitigating features were alleged on the appellant's behalf: his lack of previous convictions and positive good character as reflected by the character references submitted on his behalf which we have considered, his age (he is 62) and his medical condition including chest pain, removal of bowel polyps, spinal issues and mental health issues including anxiety and depression.

Mr Pawson-Pounds who represented the appellant in the court below as well as before us, had referred to the terms of the pre-sentence report prepared on the appellant's behalf which referred to the low likelihood of re-offending, to the protective factors which were in place and the appellant's articulation of suicidal ideation when asked about the possibility of a sentence of immediate custody. He has told us today that the appellant's mental health has been aggravated by the nine weeks or so that he has been in custody pending this appeal.

He was assessed by the probation service as suitable for a rehabilitation activity requirement. Counsel also referred to current conditions in the prison estate as a relevant factor in considering whether the sentence should be suspended.

In sentencing the appellant the learned judge reached the sentence of 14 months' imprisonment after reduction for credit for the plea of guilty and no complaint is made about this sentence.

The learned judge then gave full and careful consideration to the question of suspension, although as we will come to there is nevertheless criticism of the approach of the learned judge to that question. He stated as follows:

On behalf of the appellant, Mr Pawson-Pounds whose submissions we considered to be at the very top of the range of excellence, has reiterated many of his submissions that were made in the court below.

He refers to the decisions of this court in the case of Manning [2020] EWCA Crim 592 and Ali [2023] EWCA Crim 232 in establishing the principle that contemporary conditions in prison represent a factor that can properly be taken into account when deciding whether to suspend a sentence, a matter which was reinforced by a statement from the Chairman of the Sentencing Council of 20 March 2023 emphasising that the current high prison population is a matter to be taken into account when deciding whether to suspend a sentence.

The prison population remains high. Mr Pawson-Pounds submits that in the circumstances of this case the judge was wrong in principle not to suspend the sentence. He refers to the fact that the judge made no reference to prison conditions or how these would affect the appellant, in particular given his health challenges or how it was that the balance of the factors in the imposition guideline meant that the sentence could not be suspended. He refers to four factors therefore which he says the learned judge failed to take into account in his consideration of whether to suspend the sentence but which should have been taken into account. First, the appellant's medical condition. Secondly, his mental health and expression of suicidal ideation. Thirdly, the loss of protective factors, including loss of income, accommodation and familial support. And finally, as we have already mentioned, prison conditions.

Despite what we have already described as the excellent submissions on behalf of the appellant, we have come to the firm conclusion that it cannot be said that the learned judge erred in principle in failing to suspend the sentence. For that to be true it would have to be established that no reasonable judge considering the factors in this case could have failed to suspend the sentence. Whether to suspend a sentence involves a balancing exercise on the part of the judge, as Mr Pawson-Pounds realistically accepted, and within which there is a wide degree of discretion. There will always be cases where some judges would have exercised that discretion to suspend the sentence, whilst others would not. Although it is true that the judge below did not make specific reference to the four matters to which Mr Pawson-Pounds has referred, in our judgment in particular the reference to prison conditions is a relatively soft factor which did not need to be specifically articulated. Clearly the judge had in mind the appellant's medical condition because he took that into account in reducing the prison sentence which he imposed.

The judge explained his decision not to suspend the sentence by reference to the seriousness of the offence and in particular by reference to the length of time over which the appellant defrauded his family which we note included lying to them repeatedly. He took the view that in the context of this case appropriate punishment could only be achieved by immediate custody and in that regard we cannot accept that the learned judge was wrong.

The appeal is accordingly dismissed but we would only add this. There was an error in the court in imposing the surcharge given the length of time over which the offending occurred and therefore that part of the order below shall be quashed and there shall be no surcharge.