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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Russell, R v [2001] NICA 45 (12 October 2001)
URL: http://www.bailii.org/nie/cases/NICA/2001/45.html
Cite as: [2001] NICA 45
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HIGGINS J
This is an application for leave to appeal against sentence, leave having been refused by the single judge. At the opening of his trial at Belfast Crown Court on 6 September 2000 the applicant pleaded guilty to 33 counts. Thirty one counts alleged conspiracy to defraud the Department of Health and Social Services in Northern Ireland, one (Count 7) alleged forging an income support claim form and one (Count 8) alleged making a false income support claim form. On 26 January 2001 the applicant was sentenced to a custody probation order comprising three years imprisonment to be followed by one year's probation – to which order of the court the applicant consented. The learned trial judge stipulated that if the applicant had not consented to the custody probation order he would have imposed a sentence of four years imprisonment. On Counts 7 and 8 the applicant was sentenced to 12 months and on each of the conspiracy counts he was sentenced to three years imprisonment, all the sentences to be served concurrently. After the plea of guilty on 6 September 2000 the proceedings were adjourned and the applicant was released on bail pending a pre-sentence report and inquiries relating to his financial standing. On 24 October 2000 on foot of an application by the DPP under the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 Kerr J made a restraint order prohibiting the applicant from dealing with his assets. The prohibition included property at Orchardville Crescent, Belfast (the family home), and a Renault Megane Scenic motor vehicle. Both the house and the car are in the name of the applicant's wife. The house which is the subject of a mortgage in the amount of £23,000 was valued at £90,000. The applicant was also the holder of a two year bond valued at £21,000. In addition to the custody/probation order a confiscation order in the sum of £57,000 was imposed. £20,000 was to be paid within 14 days and the balance over a period of three years. In default of payment of the sum of £57,000 the applicant was ordered to serve a maximum term of two years imprisonment consecutive to the term of three years already imposed. At the conclusion of the proceedings in the Crown Court counsel on behalf of the applicant applied that the applicant be released on bail pending appeal. The applicant was released on bail on the same date, 26 January 2001, and remained on bail until the hearing of his appeal on 7 September 2001.
The grounds of appeal filed on 24 April 2001 are –
(a) the learned trial judge failed to take proper account of the following extenuating circumstances:-
(i) the delay in the case coming on for hearing with the attendant psychiatric and psychological distress to the defendant and his family;
(ii) the effect upon the defendant's health by reason of the delay and prospects of trial;
(iii) the deterioration in the defendant's health prior to the court hearing;
(iv) the unequivocal medical evidence available to the court in relation to the deterioration in the defendant's well-being;
(v) the failure of the judge to pay due regard to the substantial restitution made.
This was a large scale fraud perpetrated on the Department of Health and Social Services in Northern Ireland over a considerable period of time. It came to light by chance. On 9 February 1995 a fire occurred at a house on the Springfield Road occupied by Gerard McCullagh (a co-defendant). Mr McCullagh attended the scene and spoke to a detective and then left. He was not seen again by the authorities for some considerable time. The fire scene was examined by a Scenes of Crime Officer. In a cupboard housing the electrical switches for the house he found ten DHSS benefit books in the names of ten different persons with ten different addresses in Belfast. As a result of the discovery of these books a lengthy investigation was commenced by the DHSS which in turn led to a review of the activities of the applicant between 1991 and 1995 when he worked as a clerk in the Belfast Benefits Office at Corporation Street. In 1991 the processing of benefit claims was computerised. Thereafter the applicant had access to confidential files in the computer system. He was provided with a computer identification number and password to enable him to access the computer system. He used his identification number and password to access files to identify persons whom he knew would be unlikely to make a claim for any type of benefit. He also used his access to the computer system to gather names, addresses and national insurance numbers. This information was then passed on to his co-accused who made the claims in those names together with the other information supplied by the applicant. The applicant and his co-defendants were members or patrons of the Irish National Foresters Club. Gerard McCullagh was not detected by the authorities until December 1998. On several occasions during 1996 the applicant was interviewed about misuse of his access to the computer system and these false claims for income support and denied all knowledge of them. Thus the investigation by the police and DHSS personnel continued on for several years. In all the applicant used his position to create and maintain 31 false claims for benefits using at least 25 different identities. With one exception the claims were made by the co-defendants. The applicant made one claim. Count 6 (forgery) and Count 7 (using a false instrument) relate to this claim in the amount of £174.67. However, the total amount claimed on foot of these false claims amounted to a minimum of £190,000, half of which was received by the applicant.
The applicant is 40 years of age. He has been married for 20 years and has two children aged 16 and 11 years respectively. He joined the Civil Service immediately after he left school and worked in various DHSS offices until he was suspended from his employment in 1995. He suffers from several medical complaints – (i) moderate to severe facial psoriasis which is disfiguring; (ii) psoriatic arthritis which restricts his mobility particularly on waking in the mornings; (iii) hypertension; and (iv) ongoing liver dysfunction, due to heavy alcohol consumption. Standard medical treatment for psoriasis has been rendered less effective by the applicant's liver dysfunction. In addition to these medical complaints the applicant has a gambling habit.
The applicant was returned for trial in November 1999. He and his co-accused appeared at Belfast Crown Court on 14 January 2000 and pleaded not guilty. The indictment contained 105 counts and the deposition ran to over 5500 pages. The trial was fixed for 5 September 2000. On 6 September all five defendants pleaded guilty. The applicant's co-defendants were sentenced to concurrent terms of imprisonment, which were suspended for two years.
Mr D Fee QC and Mr C McCreanor appeared on behalf of the applicant on the appeal. Mr Fee did not appear in the Crown Court. In the course of his oral submission to this court Mr Fee accepted that the applicant had committed serious offences and that a custodial sentence was inevitable. However he contended that in imposing a total sentence of three years imprisonment with one year's probation, the learned trial judge failed to give adequate consideration to a number of factors favourable to the applicant. These were –(i) delay; (ii) the medical condition of the applicant; and (iii) the restitution to be paid by the applicant. I shall deal with each in turn.
Firstly it was submitted that there was delay in bringing the applicant to trial. The applicant was suspended from his employment with the DHSS in 1995 and the case did not come on for trial until 2000. Mr Fee submitted that this delay had a detrimental effect on the applicant. It is correct that a substantial period of time elapsed before the applicant's case came on for trial. A number of factors led to this situation. This was a major investigation into a serious fraud on the DHSS. The allegations spanned a period from 1991 to 1995. When interviewed about these offences the applicant denied his complicity in them. The investigation and inquiries and the gathering of evidence continued after the applicant was suspended from his employment and also after he was interviewed by the police. A co-defendant was not detected by the police until December 1998. When first arraigned the applicant pleaded not guilty and the case was put back for trial. Frankness with the investigators and an early plea of guilty would have reduced considerably the time between his suspension from employment and his trial. While that time period was long, in the circumstances of this case it was not unduly so.
Secondly it was submitted that the learned trial judge failed to take into account sufficiently or at all the medical conditions from which the applicant suffered, namely psoriasis and psoriatic arthritis. These conditions require careful treatment and monitoring and restrict the applicant's mobility. The applicant's position in prison would therefore be made more difficult. The applicant's medical history was outlined to the learned trial judge in a series of reports and updates. These were from Dr Taggart, Dolan, Brown, Johnston and Davidson. In addition he had a report from a Consultant Psychiatrist Dr Bownes who stated –
"The clinical picture presented at interview was consistent with the psychological effects of a stressful and unpleasant situation; and the level of anxiety and subsequent distress presented was such that the possibility that Mr Russell will display the onset of a clinically Reaction Depression Disorder in response to the stresses inherent in his present legal situation cannot be discounted. However, I could detect no evidence at the present interview of active mental illness or of symptoms of anxiety or depression of a nature or a level of severity indicated on an imperative required for psychiatric treatment."
In addition to the medical evidence, the learned trial judge also heard evidence from a Mr Arthur Rooney who gave the applicant an impressive character reference and was willing to offer him a senior post in his company.
Finally Mr Fee submitted that the applicant had agreed to make 'restitution' in the sum of £57,000 and the sentence imposed did not reflect that level of 'restitution'. This submission requires further investigation. Following the pleas of guilty on 6 September 2000 senior prosecuting counsel informed the court that he was instructed to apply for confiscation orders under the Criminal Justice (Confiscation) (Northern Ireland) 1990 against all of the defendants. The case was then adjourned. Subsequently, the restraint orders to which I have referred were made by Kerr J. The case came back before the learned trial judge on 19 January 2001. The information necessary for the hearing of the application for a confiscation order had yet to be finalised and the case was adjourned for a week. During the course of the hearing the learned trial judge enquired from Mr McCreanor whether the house, which had been identified in the restraint order, was jointly owned and Mr McCreanor stated that it was. At one point the learned trial judge commented that the applicant could have made an offer of money voluntarily. On 26 January 2001 when the case came back before the learned trial judge senior counsel on behalf of the applicant informed the court that he had told prosecuting counsel some time before that the applicant would make a voluntary payment of restitution. He stated that the applicant had £21,000 in a Bank account but that the amount required by the prosecution by way of restitution was then not known. He went on to state that a voluntary payment of £57,000 would be made. There would be an immediate payment of £21,000 but that the balance would depend upon the arrangement of a second mortgage on the house, but there was a degree of uncertainty about this. Shortly after this exchange the learned trial judge passed sentence. In the course of his remarks he stated -
"A criminal justice confiscation order was sought against you and a claim for £57,000 was sought from you. I am told that you and your wife are taking out a second mortgage on your house so that the £57,000 will be paid voluntarily".
Later he said –
" I have taken into account the money which you are proposing to give in lieu of confiscation".
Later the learned trial judge made a confiscation order in the sum of £57,000. He ordered that £20,000 was to be paid within 14 days and the balance of £37,000 over three years. In default of payment he imposed a two year sentence of imprisonment to be served consecutively to the three year sentence for the fraud offences.
The Crown Court was empowered to make confiscation orders by the Criminal Justice (Confiscation) (Northern Ireland) Order 1990. Article 4 states -
"4.-(1)The Crown Court and a court of summary jurisdiction shall each have power, in addition to dealing with an offender in any other way, to make an order (a confiscation order) requiring him to pay such amount as the court thinks fit, being an amount which must be at least the minimum amount, but must not exceed –
(a) the benefit in respect of which it is made; or
(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,
whichever is the less.
(2) The Crown Court may make such an order against an offender where –
(a) he is convicted of any offence to which this Order applies other than a drug trafficking offence; and
(b) it is satisfied –
(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the Court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and
(ii) that his benefit is at least the minimum amount.
(9) If the court determines that it ought to make such an order, the court shall, subject to Article 7, before sentencing or otherwise dealing with the defendant in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this Article and made a confiscation order for that amount, specifying the offence or offences."
Thus the Crown Court may make a confiscation order where it is satisfied that the offender has benefited from the offence and that benefit is at least the minimum amount, which by virtue of Article 4(10) was then £10,000. If the court decides that it is appropriate to make a confiscation order, then it should determine the amount to be recovered by way of confiscation and make an order for that amount and to do so before passing sentence on the offender. Where the court makes a confiscation order Article 8 becomes relevant. Article 8 as amended by the Criminal Justice (Northern Ireland) Order 1994 states -
"8.-(1) Where a court makes a confiscation order against a defendant in any proceedings, the court shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before –
(a) imposing any fine on him, or
(b) making any order involving any payment by him other than an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (compensation orders); or
(c) making any order under –
(i) section 27 of the Misuse of Drugs Act 1971 (forfeiture orders); or
(ii) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (deprivation orders),
but subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him."
Thus where a court has made a confiscation order it shall leave that order out of account in determining the appropriate sentence to pass on the offender. In this case the learned trial judge, in the exercise of his discretion, decided to make a confiscation order and by virtue of Article 8(1), was not permitted to take into account the fact that he had made a confiscation order or its amount. Through his counsel the applicant offered to make a voluntary payment of the amount which was the subject of the confiscation order. The learned trial judge indicated that he took that offer into account. In the event the applicant did not make any restitution either within the timescale determined by the learned trial judge or at all.
In his sentencing remarks the learned trial judge noted that the evidence against the applicant was overwhelming but that by his plea of guilty he had "saved the public purse a significant sum of money". He also gave him credit for his previous good character. He then referred to the medical reports and summarised the applicant's ailments and their effects. It is clear that he paid due regard to the applicant's complaints, so much so that he required to be assured that the applicant would receive the appropriate treatment in prison.
During the course of the hearing the learned trial judge was referred to a number of cases involving different types of fraud. The only comparable case was R v Nwoga 1997 CAR (S) 1. In April 1996 in the Crown Court at Woodgreen, Nwoga and his two co-appellants pleaded guilty to conspiracy to defraud the Department of Social Security by making false claims for benefit. Over a period of 21 months a total of 59 claims for benefit were made and payments in excess of £300,000 were obtained. Mwoga was believed to be the architect of the fraud. Mbajuwa was an employee of the Department of Social Security and misused the Department's computer in the same way as the applicant in this case. Minto, who was Nwoga's girlfriend, obtained the money on foot of the false claims. Nwoga and Mbajuwa were each sentenced to 6 years imprisonment and Minto to 4 years imprisonment. On appeal those sentences were reduced to 4 years and 2½ years respectively. Nwoga and Mbajuwa were treated as being equally culpable – one the organiser of the fraud and the other having access to the necessary confidential information. In this appeal the applicant was both the organiser of the fraud and the person who accessed the computer for the confidential information necessary to enable the false claims to be made. The learned trial judge stated –
"You were at the centre of the conspiracy and its instigator; you had to find others to make the claims; your cronies appear to belong mostly to the Irish National Foresters Club and it was with them that you hatched numerous plots".
The applicant was an administrative officer in the Social Security Agency. He was privileged to have access to the confidential information contained in the computer system by virtue of the identification number and password assigned to him. He abused both the trust reposed in him by his superiors and the confidential information to which he was privy. He drew others into his scheme to make the false claims. Many such claims were made over a substantial period of time. The applicant received large sums of public money from those claims, which were spent largely on alcohol and gambling. In those circumstances and taking into account the applicant's considerable personal circumstances (as the learned trial judge did), a sentence of three years imprisonment with one year's probation was neither manifestly excessive or wrong in principle. It is clear that the learned trial judge took into account all the matters placed before the court and urged upon him by counsel on behalf of the applicant. Every possible point that could be made in his favour in mitigation was made by counsel on his behalf, as the learned trial judge stated. The application for leave to appeal is dismissed.
After sentence was passed counsel on behalf of the applicant applied for bail pending appeal against sentence. The learned trial judge granted bail and the applicant has been at liberty since that date. No warrant for his committal was drawn up. In those circumstances it is appropriate to record that the warrant for committal shall run from the date on which the application for leave to appeal against sentence was heard and dismissed, namely 7 September 2001. We think it appropriate to remind sentencers that where sentence has been passed, an application for bail pending appeal can only be granted by the Court of Appeal after the necessary appeal documents have been lodged with the Appeals and Lists Office at the Royal Courts of Justice.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND