England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15 July 2009

1. LADY JUSTICE HALLETT: Roderick Evans J will give the judgment of the court.
2. MR JUSTICE RODERICK EVANS: On 15 October 2008 at the Inner London Crown Court, this appellant pleaded guilty to ten counts of dishonestly making a false representation for gain. The counts to which he pleaded guilty were counts 2, 4, 5, 7, 11, 12, 14, 15, 18 and 19. Each count was laid contrary to section 1 of the Fraud Act 2006. Other counts in the indictment were ordered to remain on the file on the usual terms. Those counts were count 1, obtaining services by deception, counts 3, 6, 8, 9, 10, 13 and 16, alleging possession of an article for use in fraud, and counts 17 and 20, both counts of dishonestly making false representations for gain.
3. On 14 November the appellant was sentenced to a total of 32 months' imprisonment, credit being given for 93 days which he had spent on remand. The term of 32 months was imposed on count 15, which had been committed by the appellant when he was on bail in relation to the other counts, and concurrent terms of 24 months' imprisonment was imposed on each of the remaining nine counts.
4. Initially the appellant sought leave out of time to appeal against sentence, but when the papers were looked at in the Court of Appeal office, it was noticed that some of the counts to which the appellant pleaded guilty were defective for reasons which we will come to in a moment. Those defects were pointed out to the appellant's legal advisers, and an application was then submitted for leave to appeal against conviction in relation to the defective counts. The single judge gave leave to appeal against conviction on those counts, but referred the question of appeal against sentence to the full court, making it clear that had the application for leave to appeal against sentence stood alone, he would not have granted leave.
5. The activity which brought this appellant before the court related to his use of male prostitutes. Between 1 May 2006 and 8 May 2008 the appellant made contact with a large number of men through a homosexual website. He would negotiate a fee for sexual services, and by and large the appellant would pay the men for their services by cheque. Very substantial fees were agreed. No doubt, the men whom the appellant contacted would charge what they could, and the appellant agreed quite readily to the substantial fees.
6. Payment by cheque was made from a cheque book which the appellant had obtained after it had been posted to an address where the appellant lived for a short time. It was not of course his cheque book. When he paid by cheque, he knew full well that the cheques would not be honoured. On occasions the defendant would contact the prostitutes after their initial meetings, either by telephone or by text messages, and he appears to have found pleasure in telling the men that he would not be paying them, and in one case he told one of the male prostitutes that he (the defendant) was HIV positive.
7. On 23 March 2008 the defendant was arrested and interviewed about the matters and made no comment. He was then released on bail, and whilst on bail committed count 15. The defendant engaged the services of a male escort on that occasion to whom he gave £2,500 for sexual services. That money came from a family trust administered by the defendant's parents, who had not of course authorised the payment.
8. We turn to deal with the question of conviction. The Fraud Act 2006, which as we have said was the statute contrary to which the counts had been laid, came into force on 15 January 2007. It was brought into force by the Fraud Act 2006 (Commencement) Order 2006. Three of the counts to which guilty pleas were entered refer to dates before the Act came into force. The offence to which count 5 related was committed between 1 January and 1 March 2007, a span of dates which covers the date upon which the Act did come into force.
9. Count 7 was committed on 2 May 2006, and count 18 between 1 May and 31 May 2006. Counts 7 and 18, therefore, were based on acts committed before the Act came into force. It is not and cannot of course be contended that the Act operates retrospectively, and we have no alternative but to quash those convictions as they are unsafe.
10. Count 5, however, is in a different category. The period mentioned in the count covers a fortnight at the beginning of January 2007 when the Act was not in force. However, the incident which gave rise to the count is described in the witness statement of the complainant as having occurred following the defendant making contact with him on a Tuesday, either at the end of January or early February 2007. The way the date is pleaded does of course produce an irregularity. That is not determinative of this issue (see Pritchett and Langston [2007] EWCA Crim 586) as the date in an indictment is not normally to be regarded as a material averment, and in this case the offending behaviour which underlies the count arose after the date the Act came into force. Therefore that count was not defective. The plea related to an act which occurred during the currency of the Act, and the conviction is safe.
11. We turn therefore to deal with the renewed application for leave to appeal against sentence. We have said enough about these offences to demonstrate that they were mean and unpleasant offences. The position of this applicant was severely aggravated by his previous convictions. He had on three previous occasions been before the court for some 13 offences of fraud, and he had obtained services as a result of deception on those occasions. It is right that the facts of those cases are significantly different from the present offences. But on those occasions he obtained holidays and other services by fraud. He had in fact been released from a term of imprisonment of 20 months on 1 August 2005.
12. A pre-sentence report, which has been prepared during the period of the adjournment, between the entering of guilty pleas and the date of sentence, reported that the appellant said that he had been motivated to commit the offences through loneliness and low self-esteem. However, it was noted that the appellant had given the same motivation for committing his previous offences of fraud against airlines and travel companies. The appellant did not appear, in the view of the reporting officer, to accept full responsibility for the offences, and minimised the extent to which his offending would have affected the complainants. There was a clear pattern of offending emerging which involved deceiving others, often motivated by the needs of the appellant to have company. The appellant was assessed as being of medium to high risk of re-conviction.
13. Four matters are urged before us by Mr Fidler, who appears on behalf of this applicant. Firstly, the judge failed to give sufficient allowance for the fact that the detail of sexual practices by male escorts would have had to have come before the court if the matter had proceeded to trial. It is no doubt a matter of some relief to those witnesses who would have had to give evidence of their contact with this applicant that they did not have to come to court to do so. That is no doubt a matter which weighs in the balance in mitigation on behalf of this appellant. But beyond that, it does not go.
14. Secondly, the judge, it is said, accepted during mitigation that the appellant had carried out a deception against men who were themselves deceiving him, in the sense that they were taking advantage of the defendant by demanding very substantial sums for their services. There is obviously an element of truth in that. Large sums of money were demanded by these men, and the defendant for his own purposes required their company. However, these men are themselves vulnerable and susceptible to this kind of deception.
15. Thirdly, it is said that the judge took too high a starting point for sentence, or that he failed to give sufficient credit for the appellant's guilty pleas. That is the fourth point made on behalf of this applicant.
16. Looking at the applicant's conduct in the round, he is a person who has previous convictions for not dissimilar offending. The people whom he deceived were vulnerable because of the nature of the role which they had adopted, and he used them in an unpleasant and sometimes threatening way. He chose victims whom he never expected to complain. Moreover, he committed his activities and continued his activities whilst on bail. In the circumstances, we, like the single judge, are of the view that this sentence was not manifestly excessive, and we refuse this renewed application.
17. Accordingly, the result of this hearing is that the convictions on counts 7 and 18 are quashed. The sentences imposed on the remaining counts are unaltered.