England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 January 2002

Monday 14 January 2002

1. THE LORD CHIEF JUSTICE: This appeal raises an issue of principle as to the appropriate approach which should be adopted to sentencing in cases of dishonesty, particularly when an offence is committed by a woman of previous good character who has responsibilities for children.
2. The facts of the offences can be set out very shortly. On 2 October 2001, in the Crown Court at Liverpool, the appellant pleaded guilty to two offences of obtaining services by deception. On 6 November 2001, she was sentenced by His Honour Judge James to eight months' imprisonment concurrent on both offences. She appeals against sentence by leave of the single judge who ordered the matter to be expedited.
3. On 5 April 1998, the appellant completed an application for credit at Wallis store in Liverpool. She claimed that she had been employed by the Merseyside Fire Service as a cook for a period of three years. This was untrue. She had worked in such a position only on a casual basis, but had not been employed at all in the nine months preceding the application. Credit facilities were granted. By the time it was closed, with interest and administration charges, the account was £5,682.66 in debt. It was the appellant's contention that she had made the required minimum payments on the account during the first twelve months. Thereafter she had made no further payment. This was accepted by the prosecution. The judge sentenced her on that basis.
4. On 17 January 2000, the appellant purchased goods to the value of £714 from a Comet store in Liverpool. A deposit of £71.48 was paid. The appellant applied for credit to finance the balance. In her application she claimed to have been employed by Allwood Joinery for a period of six years. This was quite untrue. She had never worked for that company. Some months after the initial purchase, probably in June 2000, the finance company issued a credit card to the appellant which she then used to make purchases. The appellant maintained that she had not knowingly applied for, or expected to receive, the credit card. By the time that account was closed, the balance was £5,438 odd in debit, and only the sum of £43.76 had been paid.
5. The appellant was arrested on 6 March 2001. When interviewed she admitted that she had made the false representations on each application and that she knew they were untrue.
6. It was submitted on her behalf that these were unsophisticated offences; that she had used her correct name, address and date of birth; that it was inevitable that her offences would catch up with her; that she did not use any forged documents to back up her false claims; that there was nothing commercial about the offences; and that in the case of the first offence she had made payments, which supported her suggestion that she intended to pay the debt.
7. Prior to her being sentenced she had borrowed £4,000 from her mother to pay off part of the indebtedness in respect of the offending.
8. The appellant is 33 years of age. She is the sole carer of two children aged 11 and 4. She had no previous convictions or cautions and was a person of positive good character. She put before the court references which supported the quality of her character. They indicated that she did voluntary work at a local charity shop and she gave her time to a voluntary agency assisting parents with young children.
9. A pre-sentence report before the court recommended a community sentence. It was clear that the appellant was deeply sorry for the way she had behaved; the offences had been committed in an effort to make a home for her children. The probation officer in the report concluded by saying:

"Should the court in all the circumstances wish to consider a community based disposal then I would propose the most suitable would be that of a Community Punishment Order. Such an order would allow [the appellant] to make direct reparation to the community in which she lives whilst at the same time remind her of the need to display more acceptable behaviour in the future."

10. The report added, importantly:

"All community orders are rigorously enforced and any breach would be brought to the immediate attention of the courts."

11. In those circumstances it would certainly be open to the court to take a different course to imposing a sentence of imprisonment.
12. In his sentencing remarks, the judge said:

"These offences are serious offences. I have considered whether it is possible to impose any sentence upon you other than one of imprisonment and in deciding that naturally, of course, I have taken into account that you are 33 years old and that you have never before been in any kind of trouble. But those who commit offences of this kind, knowing perfectly well that there is really no chance of them ever being able to pay for the goods concerned, go to prison."

13. Clearly the learned judge thought that for offences of this character, involving this amount of money, there was no alternative but to impose a prison sentence.
14. The judge was right to commence by asking himself: was prison necessary? If he came to the conclusion it was, the next question which he had to ask himself was: if so, how long a prison sentence was necessary? Before asking those two questions he had to consider the available alternatives, one of which was the course suggested by the probation officer.
15. In our judgment, a judge also has to take into account the reality of sentencing policy in respect of offences of this nature. The first factor that he has to take into account in doing so is that it is now clear that apart from "the clang of the prison door" type of sentence, which gives a prisoner the opportunity of knowing what is involved in imprisonment, the ability of the prison service to achieve anything positive in the case of a short prison sentence is very limited. Secondly, with a mother who is the sole support of two young children, as is the case here, the judge has to bear in mind the consequences to those children if the sole carer is sent to prison. Finally, he should take into account the current situation in relation to the female prison population. Since 1993 there has been a remarkable increase. The female prison population has always been substantially lower than that of the male prison population. But the annual increase since 1993 is as follows. It increased from 1,560 to 2,260 in 1996, and then to 3,350 in the year 2000. In November 2001 the total number of females in prison had risen again to 4,020. Females currently comprise 5.9 per cent of the total prison population. The proportion has increased from an average of 4.4 per cent in 1997, to 5 per cent in 1999, and 5.2 per cent in the year 2000. Between November 2000 and November 2001 the number of females held increased by 19 per cent, from 3,380 to 4,020. That 19 per cent increase in the female prison population has to be compared with an increase of 6 per cent in the male prison population. The male prison population is substantially larger. There the increase is from 60,690 to 64,430.
16. Short prison sentences are always difficult for the prison service to accommodate. The rise in the female prison population means that two male prison establishments have now had be converted to female prisons. Because of the smaller percentage of the prison population, the ability to imprison mothers close to their homes in the community is difficult. The difficulties in the prison population to which we have referred does not mean that if an offence is such that it is necessary to send an offender to prison, they should not be sent to prison for the appropriate time. But in a borderline case, in a case where the offence does not in particular involve violence but is one with financial consequences to a commercial concern, it is very important that those who have responsibilities for sentencing take into account the facts to which we have referred with regard to the prison population as well as the other matters. In a case of a person such as this appellant who is of previous good character, who has been performing useful acts in the community, where there is every reason to think that she will not offend again, and where the offending behaviour is out of character with her normal behaviour, the courts should strive to avoid sending her to prison and instead use punishments in the community which enable offenders to repay the harm they have done. It is true that obtaining credit, as this appellant did, is easy for those who resort to dishonesty. The courts should deter those sort of offences, albeit some would say that the credit companies should do more to check references which are given by those who attempt to commit offences of this nature. Be that as it may, commercial concerns are entitled to the protection of the courts. What we have said merely indicates the course which where possible the courts should take to impose a punishment which is fitting and appropriate for that nature of offence.
17. In this case, although there was in total a substantial amount of indebtedness incurred, it must be remembered that the offence was the telling of untruths. Having regard to that, and having regard to the appellant's previous good character, we have come to the conclusion that it was not only not necessary to send her to prison, it was wrong in principle for the judge to do so. We emphasise that the judge was wrong to say that that was the only course that he could take.
18. Furthermore, if, contrary to our view, it was necessary to send this appellant to prison, this was a case where all that would be required was the clang of the prison door. That being so, not eight months' but one month's imprisonment should have been imposed. It is very important that, if that is the objective, courts bear in mind that sentences for the minimum appropriate period should be passed for this category of offending. The message that this court would like to convey to those who have the difficult task in sentencing in cases of this sort is that a community sentence is normally appropriate but if imprisonment is necessary, the shortest prison sentence possible should be imposed.
19. Accordingly, we allow the appeal. We quash the sentences of imprisonment. We do not think it is right to impose a community punishment order in this case now, whereas it would have been perfectly appropriate to do so if we were sentencing originally. However, we will make a community rehabilitation order for six months.
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