England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11 June 2013

1. LORD JUSTICE ELIAS: On 9th January 2013 at the Crown Court at Northampton, the appellant pleaded guilty to two counts of theft and was sentenced by His Honour Judge Mayo to two years nine months for the first count and three years six months for the second, these sentences to run consecutively. The total sentence was six years three months' imprisonment. This was to be concurrent to a sentence being served. He now appeals against sentence by leave of the single judge.
2. The background is this. The appellant was employed as a finance manager for Billing Aquadrome, which is a subsidiary company of Pure Leisure Group which operates a holiday and caravan park located in Great Billing in Northampton. He began his employment in March 2008 and left in September 2010. In his letter of resignation he said he had embarked on a new business venture with his wife. In fact the reason he resigned was that he had been sentenced to five years' imprisonment for a fraud perpetrated against his previous employer. His date of release was anticipated to be March 2013.
3. His role as a finance manager involved managing the day-to-day financial activities of the business. He was supported by a small team of accounts clerks. He was the most senior man. He received a salary of £45,000 and he was paid a bonus which in April 2010 was in the region of £14,000.
4. Matters came to light following his departure when a contractor Building Beams International complained that they had not received full payment for works they had completed. This caused a review of the accounting records. Closer inspection of the accounts showed that although the payment had reportedly been made to Building Beams International, in fact the money had been transferred into a Barclays Bank account belonging to the appellant. Further investigations showed that monies had been paid into two accounts and the two counts on the indictment reflected payments into each of these accounts. The first account, which was used between May 2008 and June 2009, involved payments totalling somewhere in excess of £142,000. The second was used from August 2009 until September 2010. There were seven payments made totalling almost £160,000. That was count 2. So the total money defrauded was in excess of £300,000.
5. When interviewed, the appellant explained that the bank account transfer run was made once a month. He would doctor the details so that he could make payment into his own account. He was interviewed in Bullingdon Prison. He admitted the offences and accepted that he had received monies to which he was not entitled. He claimed that the suppliers always got paid, although that was plainly not the position with respect to Building Beams International.
6. He had a record of dishonesty. He had three previous convictions for 28 offences. In March 1998 he was convicted on 11 counts of false accounting and was sentenced to two years' imprisonment. In November 1998 he was convicted of two offences of theft and furnishing false information and was given three years' imprisonment to run consecutively to the sentence then being served. In August 2010 he was convicted of nine offences of obtaining a money transfer by deception, four offences of fraud by abuse of position and theft by an employee. That was the time when he was sentenced to five years' imprisonment which led to his resignation from the company.
7. The single ground of appeal is that the starting point here was too high. Six years three months represents, after giving full credit for the guilty plea, a sentence of almost nine-and-a-half years for this offending.
8. The judge in his sentencing remarks, after recounting the facts, emphasised that this was a selfish man who put his own material desires before anything else. He had abused a position of trust purely out of greed and he noted that the sums dishonestly obtained were almost double, and sometimes more than double, his earnings from the company. The judge noted that he had been undeterred by prison sentences in the past and so he did what he knew best, as the judge put it, which was to get people to trust him and then steal from them. The judge considered that the guidelines could be exceeded in this case given the persistence of his offending and his failure to learn from past sentences. As we have said, the complaint is that nonetheless this sentence is too high notwithstanding his record.
9. It is conceded that the judge was entitled to go beyond the statutory guidelines. Those guidelines indicate for theft in breach of trust, for sums in excess of £125,000, a three year starting point is appropriate and the range is two to six years. Taken individually there can be no complaint at all about these sentences, but counsel says they have to be considered in the round and moreover she relies in particular upon the Sentencing Guideline Council guidance on totality. It is specifically stated that where a defendant is serving a determinate sentence when sentenced and the offences for which he was later sentenced were in fact committed before the original determinate sentence was imposed -- as is the case here -- then the approach of the judge should be as follows:

"Consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, an adjustment should be made to the sentence imposed for the latest offence."

The sentence of five years itself reflected a determinate sentence of five-and-a-half years because a 10 per cent reduction was given for a late plea. Overall therefore looking at the combined offending in relation to the 2010 conviction and the conviction the subject of this appeal, the total sentence before taking into account the plea was close to 15 years. We see force in the submission that this is simply too high. There must be some reduction to reflect these considerations of totality. At the same time it must be borne in mind that significant sums were stolen, they were in breach of trust and aggravated by the fact that it was for greed and to allow for a more luxurious lifestyle.

10. Taking these various matters into account, we think that bearing in mind the aggravating features and even recognising that a severe sentence was justified given this appellant's record, the sentence should have been in the region of 12 years had all these matters been considered at the same time. In our view some six-and-a-half years should now be attributed to the offences the subject to this appeal. After allowing for the plea, this would reduce the sentence to one of four and four months. We achieve this by reducing the sentence on count 1 to two years and the sentence on count 2 to two years and four months. The sentence is four years and four months to run concurrently to the sentence now being served. To that extent, this appeal succeeds.