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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST SENTENCE BY THANDIWE MATIKITI AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_2 (10 January 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_2.html
Cite as: 2020 GWD 5-83, [2020] HCJAC 2, 2020 SCCR 149, [2020] ScotHC HCJAC_2
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 2
HCA/2019-602/XC
Lord Glennie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD GLENNIE
in
APPEAL AGAINST SENTENCE
by
THANDIWE MATIKITI
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: Bell (sol adv); Central Court Lawyers, Livingston
Respondent: Cameron (sol adv); Crown Agent
10 January 2020
[1] The appellant, Thandiwe Matikiti, pled guilty to a charge of fraud by pretending that
she had been granted indefinite leave to remain in the United Kingdom when she had not
been granted such leave, and presenting a fake visa to show that she had indefinite leave to
remain, as a result of which she obtained funding from the Student Awards Agency in
Scotland in the sum of about £23,000 over a period of some three years.
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[2] The sheriff sentenced her to a period of imprisonment of 14 months, reduced from a
headline sentence of 18 months to take account of her early plea of guilty.
[3] We should note that the sentence was backdated to 18 June 2019. In consequence,
the appellant has served almost half of her sentence and is due to be released next week or
thereabouts; but the appeal may nonetheless have some value, since a custodial sentence of
12 months or over will result in automatic deportation after her release under the relevant
immigration rules. That is not something which this court can take into account in
determining the appropriate sentence for the offence, but it explains why the appeal is being
pursued notwithstanding the appellant’s likely imminent release from custody.
[4] On behalf of the appellant it was submitted that the 18 month headline sentence was
excessive (there is no criticism of the level of discount applied by the sheriff). It was
recognised that the amount involved in the fraud, over £20,000, might well lead to a
custodial sentence but, contrary to what the sheriff appeared to have thought, that was not
inevitable. The appellant had no record of previous offending and had never been in
custody, and she was therefore entitled to the presumption against a custodial sentence in
Section 204(2) of the Criminal Procedure (Scotland) Act 1995. Her motive here was not to
fund an extravagant lifestyle. It is apparent from details of the offence charged that
appellant’s intent was to fund her education so she could embark on a career of nursing in
the United Kingdom. Contrary to the view expressed by the sentencing sheriff, there was
nothing particularly sophisticated about the fraud or the manner of committing it. The false
document only had to be shown once. It was clear, and this was supported by the
comments in the criminal justice social work report, that the appellant recognised the error
of her ways and was full of remorse. Added to which, the appellant had had a very difficult
childhood and adolescence, her family having had to flee from Zimbabwe, and she herself
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having been involved in an abusive marriage and then having been exploited by her aunt
with whom she went to live after escaping from her marriage.
[5] The sheriff sets out all these matters very fairly in his report; but he came to the
conclusion that there was no alternative here to a custodial sentence of the length
mentioned.
[6] We consider that in reaching that conclusion the sentencing sheriff fell into error. It
should be emphasised that, contrary to what appears to have been the sheriff’s
understanding, the case law does not require there to be a custodial sentence in this type of
case; and any suggestion based on such case law that such a sentence will usually be
appropriate has to be tempered by the presumption that now exists against sentences of less
than one year. In any event the circumstances in this case are, we think, exceptional, having
regard in particular to the nature and purpose of the fraud which was committed to enable
her to get funding for worthwhile and necessary training with the view to a career in
nursing. Having regard to this and to the statutory presumption in her case against a
custodial sentence, we consider that the matter could properly have been dealt with by a
community payback order.
[7] However, it is too late for that disposal now since the appellant has served all but a
week of her sentence. Further, for this court simply to reduce the custodial sentence would
be artificial; and it would fail to give effect to our view that a custodial sentence was not
required and that a community payback order would have been the appropriate course. In
those circumstances, the appellant having, as we have said, served almost the whole of her
sentence, and having in consequence served a punishment significantly more severe than
the community disposal which we would have considered appropriate, we propose to allow
the appeal, quash the sentence and simply admonish the appellant.