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Cite as: [2021] HCJAC 27, [2021] ScotCS HCJAC_27

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 27

HCA/2021/73/XC

OPINION OF THE COURT

delivered by Lord Pentland

APPEAL AGAINST SENTENCE

R A

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: Collins, sol adv; Collins & Co

Respondent: Jessop, sol adv; Crown

23 April 2021

Introduction

[1]

The appellant pled guilty at a first diet to an amended charge of contravening

section 35 of the Tax Credits Act 2002 by fraudulently obtaining child tax credits over a

period between May 2012 and January 2018. The appellant certified that she was a single

parent living with her children at an address in East Lothian. The amount of the fraud was

£55,000. The appellant had been living with her partner during this period in a single

household, but failed to declare this. He had been in full-time employment. As the Sheriff

points out in her helpful report, the appellant demonstrated a clear understanding of the

requirement to notify HMRC of any changes in her domestic circumstances as she reported

the birth of a child and changes in her childcare costs.

[2]

In mitigation before the Sheriff it was explained that the appellant was the primary

carer of six children. The father of the eldest child was deceased. It was said that the

appellant's former partner had been physically and emotionally abusive towards her; he

was dependent on alcohol, and failed to provide financially for the appellant and the

children. The appellant had not led a lavish lifestyle. She was now living with a new

partner, who was the father of her youngest child. He was willing and able to care for all of

the children in the event of a custodial sentence being imposed.

The criminal justice social work report

[3]

The criminal justice social work report explained that the appellant was making

payments of £100 per month to the Department of Work and Pensions to repay the tax

credits to which she had not been entitled. She was unlikely ever to be able to repay or

significantly reduce the amount defrauded. She did not have the means to pay a financial

penalty. She was at low risk of reoffending. The report concluded that there was little focus

for supervision under a community payback order; this was not recommended. Whilst fit to

carry out unpaid work, the appellant would only be able to do this if suitable childcare

arrangements could be made. She was a suitable candidate for a restriction of liberty order.

The Sheriff's approach

[4]

The Sheriff understandably took the view that the appellant had pled guilty to a

serious offence involving deliberate benefit fraud over a period of 5 years and 8 months with

a monetary value of £55,000. Having regard to the guideline case of Gill v Thomson 2010

SCCR 922, only a custodial sentence was appropriate. There was in the circumstances no

meaningful alternative to custody. A headline sentence of 18 months imprisonment

discounted for the plea to 12 months was appropriate. In selecting that sentence the Sheriff

acknowledged that the appellant's family circumstances were compelling, but they did not

persuade her that, where she would retain her tenancy and where her new partner could

care for the children whilst she was in custody, the circumstances could be said to be

sufficiently exceptional to justify an alternative to custody.

The Note of Appeal

[5]

In the note of appeal it was accepted that, even after amendment, the monetary value

of the fraud was high, and that the court was entitled in the circumstances to consider a

custodial sentence. The appellant is a first offender, who has six children under the age

of 16, the youngest being just 5 months old. She admitted claiming the benefits in the

knowledge that she was not entitled to them. The background to the offending was that the

appellant was, at the time, in an abusive relationship with her former partner, who is named

on the indictment. He resided at the family home, but would be absent for periods of time.

He had an alcohol problem and subjected the appellant to domestic violence during the

relationship. The appellant was aware that she was not entitled to the benefits she claimed,

but did so to support the family in circumstances where her partner failed to provide

financially for the appellant and the children, and would use money intended for the family

to support his alcohol dependency. The relationship came to an end in 2019. It was

submitted that the circumstances surrounding the commission of the offence mitigated the

high value of the fraud, and, in these circumstances, an alternative to custody remained an

appropriate disposal.

[6]

It was submitted that the impact of a custodial sentence upon the children was a

further mitigatory factor. The appellant's present partner is the father of the youngest child,

but not of the other children. The appellant was concerned for the welfare of her children

and her current partner had made an application for an interdict preventing the former

partner from removing the children.

[7]

In the circumstances, despite the high value of the fraud, it was submitted that the

Sheriff erred in imposing the custodial sentence.

[8]

If, contrary to the principal submission, a custodial sentence was thought to be

appropriate, it was submitted that the starting point of 18 months' imprisonment was

excessive in the whole circumstances.

Submissions for the appellant

[9]

In his written and oral submissions to this court Mr Collins, on behalf of the

appellant, accepted that she had pled guilty to a serious offence involving the deliberate

claiming of benefits, totalling £55,000, to which she was not entitled. The appellant had

submitted her claim for Child Tax Credits without declaring that she was residing with her

then partner. The value of the fraud was such that the court was obliged to give

consideration to a custodial sentence, but Mr Collins submitted that the mitigatory

circumstances surrounding the commission of the offence, and the appellant's own personal

circumstances, were such as to provide the Sheriff with a viable alternative to such a

custodial sentence. The appellant was residing with her partner at the time of the offences,

but that relationship was an abusive one. The appellant's then partner had now been

charged with an offence under section 1 of the Domestic Offences (Scotland) Act 2018 in

relation to his controlling and abusive behaviour towards the appellant.

[10]

Whilst the couple were residing together, the appellant's partner would frequently

absent himself for periods of time from the family home, leaving the appellant and her five

children without any means of financial support. He controlled the family finances, and did

not provide any money for the appellant or the children, instead using the money to support

his alcohol dependency and other pursuits. The appellant knew that she was not entitled to

the Tax Credits. In answer to questions from the court, Mr Collins explained that the

appellant's account was that she would require to lend money to her former partner. He

would repay her and from time to time pay small amounts for the children, but he did not

support them on a regular basis. The appellant said that she did not feel able to ask him to

do so because she was scared of his violence.

[11]

The last date on the libel was 19 January 2018, some three years before the date of

sentence. By the time of sentence the appellant was living with her new partner and their

child (the appellant's sixth child). She was concerned about the impact of a custodial

sentence upon her children. The appellant's partner had sought parental rights to look after

all the children. That application has been opposed by the former partner, who is seeking to

have the children live with him. Whilst the appellant was in custody before being released

pending the present appeal, her partner had had to seek an interdict to protect himself and

the children from the former partner.

[12]

The criminal justice social work report assessed the appellant as being at low risk of

reoffending, and as such saw little focus for a Supervision Requirement of a Community

Payback Order. She was, however, assessed as suitable to undertake unpaid work as an

alternative to custody. She was repaying the money by way of a deduction from her

benefits, and was in a position to offer further repayment at the rate of £100 per month on

top of that deduction.

[13]

In the particular circumstances of the offence, and of the appellant, Mr Collins

submitted that the Sheriff erred in imposing a period of imprisonment. Esto a custodial

sentence was appropriate, the length of the sentence was excessive in light of the

circumstances relied on.

Analysis and decision

[14]

In Gill v Thomson this court noted the existence of a divergence in sentencing

practice in cases involving statutory offences of fraud. The court took the opportunity in

three sentence appeals to set out general guidelines which would apply to cases of this type.

Whilst recognising that each case must depend on its own facts and circumstances, the court

stated that for an offence involving less than £5,000 of gain a community service order may

be taken as the norm, being a direct alternative to a custodial sentence for an offence at the

higher end of the range. A fine or other non-custodial disposal, not being a direct

alternative to custody, may be seen as reasonable for offences in the middle of the range

(£2,500). The court did not consider that a short custodial sentence (less than three months)

ought to be regarded as appropriate for offences in the range of £5,000 to £20,000. At the

lower end of this range, a community service order may again be appropriate as a norm, as a

direct alternative to custody. But where the offence is in the higher reaches of the range, the

court would expect a significant custodial sentence to be imposed in the absence of quite

exceptional circumstances. Offences above the level of £20,000 might attract penalties only

available in solemn proceedings.

[15]

In the present case, as we have explained, the amount defrauded by the appellant

was £55,000. There can be no doubt that, in view of the large sum defrauded by the

appellant, a custodial sentence would normally be required in terms of the guidelines

approved in Gill v Thomson. The circumstances would have to be truly exceptional to justify

the imposition of a non-custodial penalty in a case where such a large sum of state benefits

had been fraudulently obtained. Having given close consideration to all the circumstances

of the present case, we are unable to say that a non-custodial disposal would be appropriate.

The appellant deliberately defrauded the state of a very large amount of benefits over many

years. She was well aware that she was not entitled to these benefits. Yet she persisted in a

prolonged course of conscious dishonesty. We acknowledge the various difficulties that the

appellant faced with her former partner, but we do not consider that these were sufficient to

justify fraud on such a substantial and sustained scale. As the Sheriff aptly observed, it is

important to ensure consistency and predictability in sentencing in cases of this type. That

was why sentencing guidelines were issued by the court in Gill v Thomson. There is no basis

for departing from the guidelines in the present case. A custodial sentence was, in our view,

amply merited.

[16]

As to the length of the sentence, the Sheriff took full account of the appellant's

personal and family circumstances. She noted that the appellant would retain her tenancy

and that her current partner could care for the children. The Sheriff selected a headline

sentence which, in our view, properly reflected the appellant's particular circumstances,

including her various difficulties and the challenges she has faced. We can find no fault in

the approach that the Sheriff adopted or with the headline sentence she selected. No issue is

taken with the level of discount.

[17]

For these reasons we conclude that the appeal must be refused.