England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		24th March 2006

1. MR JUSTICE FORBES: On 7th October 2005 in the Harrow Crown Court, this appellant pleaded guilty to five counts of making a false statement or representation so as to obtain benefit. On 23rd February 2006 she was sentenced to 8 months' imprisonment concurrent on each count. She now appeals against that sentence by leave of the Single Judge.
2. The brief facts are as follows. The appellant received Income Support, Housing Benefit and Council Tax Benefit and was fully entitled to receive those benefits up until February 2000. However, on 7th February 2000 she obtained full-time employment with a firm called Travelex. Nevertheless she continued to claim the benefits whilst she was working and on additional forms, which she had to fill out in relation to her benefits, she stated that she was not working. She continued to received the benefits until 19th April 2004 when an anonymous telephone call informed the authorities that she was working whilst claiming benefits. As a result an investigation was carried out.
3. After initially denying the offences she admitted she had been working whilst claiming benefits. She made that admission during the course of her second interview.
4. The first count on the indictment related to additional housing and council tax benefits, in respect of which she had filled out a form on 1st February 2001 to say that she was not working. Counts 2 to 4 related to additional housing and council benefit forms which she had filled out on 21st January 2002, 3rd January 2003 and 23rd January 2003, again saying that she was not working. Count 5 related to an additional Income Support Benefit form which she filled out on 8th August 2003 to say that she was not working. In all, five forms were involved in which the appellant made the false statements that she was not working when in truth she was. As a result she dishonestly obtained a total of £26,307.94 in income support benefit and a further £9,871. 20 in housing and council tax benefits. The total amount dishonestly obtained was £36,179.14. Those figures were agreed in a written basis of plea.
5. By the time she came to be resentenced, the appellant had repaid £534 of the Income Support monies dishonestly obtained at £40 a month and a further sum of £2,787.19 of the housing and council tax money dishonestly obtained again at the rate of £40 a month.
6. Had she been honest with the authorities about her employment from the outset, she would have been entitled to claim a total of around about £19,000 in Working Tax Credit from the Inland Revenue over the period during which she was working. Accordingly, if that entitlement is taken into account, the net gain that resulted from her fraud was £17,179.14.
7. When passing sentence, the judge said this:

"I am sentencing you on the basis of your written basis of plea which shows that the overpayments totalled a little over £36,000. This amount over a period of four-and-a-half years equates to a sum of about £155 per week. In my judgment, this is not a small sum of money.

You made false representation on five occasions. You received the overpayments over a substantial period of four-and-a-half years. The dishonest abstraction of tax payer's money is something which is not to be treated lightly. I take into account the fact that initially you were legitimately entitled to these benefits, and that your circumstances only changed when you obtained employment with Travelex."

Later at page 4 of the transcript the judge said:

"Your counsel has asked me to take into account the possibility that if you had been honest and made an application to the Inland Revenue, it is possible that you may have received tax credits, which, if granted, would have amounted to about £19,000.

However, the whole point is that you are being sentenced for being dishonesty, and I consider it inappropriate to take into account what you might have received if you had been honest. In any event, you received letters in connection with your housing benefit which informed you that you may be entitled to claim tax credit and it was open to you to do so. I am therefore, not persuaded that this is a matter on which I can properly place much, if any, weight."

8. The appellant is now aged 40 and was of previous good character. The pre-sentence report before the judge provides considerable detail of the appellant's personal circumstances. It is not necessary to go into that in great detail, but it is of importance to refer to the general nature of her personal circumstances. The probation officer recorded that the appellant expressed a genuine shame and remorse for what she had done. She told the probation officer that her husband had not paid her any maintenance since their marriage had broken up. As a result, she had accrued significant debt and was struggling to cope. She told the probation officer that she had committed the offences to provide for her children. She had repaid some of the monies dishonestly obtained. She went on to tell the probation officer that she had left her husband because of his violence. He was later imprisoned for setting fire to her parents' home and detained under the Mental Health Act for threatening them with a pistol on his release. He had developed a particular disease and she was concerned that her son might also be a carrier. She had made a previous attempt at suicide and that attempt had left her determined never to attempt suicide again. In the view of the probation officer she posed only a remote risk of re-offending.
9. On behalf of the appellant Mr Stone submitted that this sentence was manifestly excessive having regard to all the circumstances. He sought to persuade us that this was a case in which a non-custodial sentence should have been passed or at the very least any custodial sentence should have been suspended. We are not persuaded by those particular submissions. In our judgment, this was a case in which a custodial sentence was inevitable. The only real question was how long that sentence should be.
10. We are satisfied that the sentence passed was too long in all the circumstances. In our judgment there was, as Mr Stone submitted, compelling personal mitigation in this case. As Mr Stone pointed out, this particular appellant was dishonestly taking the money in order to provide for her children. She was not a professional fraudster who was engaged in some sophisticated abuse of the benefits system. There was the background of a disastrous marriage which had left the appellant seriously financially embarrassed. The money that she did obtain was not used for luxury goods or self indulgence, but was used entirely to help provide for her children. Also, there was the question of the Tax Credits to which she was entitled. We agree with Mr Stone's submission that the judge appears to have treated that consideration as irrelevant. In our judgment, it was a relevant consideration for the purposes of mitigation. Although, the judge was right to approach the case on the basis of the total amount dishonestly obtained, he should have had regard to the fact that some £19,000 could have been claimed honestly during the same period. We are of the view that he was wrong to treat it as irrelevant as he did.
11. Taking all these matters into consideration, in particular the personal circumstances of the appellant, we have come to the conclusion that the appropriate sentence would have been one of 4 months' imprisonment. The sentence passed will therefore be quashed. For it will be substituted one of 4 months' imprisonment. To that extent and for those reasons this appeal against sentence is allowed.