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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Temple, R v [2008] EWCA Crim 1803 (3 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1803.html Cite as: [2008] EWCA Crim 1803

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 3 July 2008

1. LORD JUSTICE RICHARDS: This is an appeal against sentence in a relatively straightforward case of benefit fraud. The appellant is a 40-year-old woman with three children now aged 12, 16 and 19. She is separated from her husband, although she remains on good terms with him. She lived in a caravan with the younger two of her children. Her only previous convictions relate to driving offences in 2001. She has suffered from depression for many years.
2. For a number of years she had made claims to income support, stating on the relevant forms that she had no income, no capital and no bank accounts. That information was originally correct, so far as is known, and she had been entitled originally to the benefit claimed. Her financial circumstances then changed but she failed to inform the department of that fact. In terms of capital limits, entitlement to income support is not affected if a person has under £3,000 in their bank account. Between £3,000 and £8,000 entitlement is reduced. Over £8,000 entitlement is lost. What happened in this case is that from mid-February 2003 the appellant had assets exceeding £3,000 in her bank account. That sum steadily increased to around £8,000 by May 2003. In June 2003 a cheque for £34,000 was paid in, bringing the balance to over £40,000. The money in the account then slowly dwindled, reducing the balance to under £3,000 again by January 2005. At no time during this period or by the time an investigation had concluded in September 2006 did she notify the department of her change of position. As a result she received overpayments of income support in the total sum of £28,617.
3. She was charged with dishonestly failing to give prompt notification of a change of circumstances, contrary to section 111A(1A) of the Social Security Administration Act 1992. She pleaded guilty but a written basis of plea by which she sought to attribute the additional sums in her account to her father-in-law was not accepted. Sentence was adjourned for a Newton hearing but the appellant then indicated that she would not call evidence at a Newton hearing. Sentence therefore proceeded on the basis that the money in the account was hers and she had obtained over £28,000 of public money to which she was not entitled.
4. On 4th April 2008 at Chelmsford Crown Court, His Honour Judge Gratwicke imposed a sentence of 15 months' imprisonment. She now appeals with leave of the single judge.
5. It is submitted that the judge failed to give credit or sufficient credit for her plea of guilty or to have regard or sufficient regard to her previous good record, her poor health and her home circumstances and responsibilities.
6. In written submissions it was suggested that the matter could have been dealt with adequately by a community order or a suspended sentence. Very sensibly, however, Miss Vine in her oral submissions today has put the main focus of her case on the contention that the length of the custodial sentence passed was excessive.
7. Guidance as to the approach to be adopted in a case of this kind is to be found in Graham [2004] EWCA Crim 2755, [2005] 1 Cr App R (S) 115 at page 640, where the so-called Stewart guidelines were considered and updated for the effect of inflation. Miss Vine has also referred to the policy of the Department of Work and Pensions of prosecuting cases up to a value of £30,000, as is now the position, in the Magistrates' Court, although the threshold was £25,000 at the time when proceedings were taken against this appellant. That too is prayed in aid in support of a shorter sentence than that imposed.
8. The main aggravating feature of the present case is the sum of money obtained which takes it out of the lower bracket referred to in Stewart and Graham and suggests a starting point substantially in excess of the 12 month upper limit for that lower bracket. Another matter to be taken into account is the period over which the offending took place. The period when the bank account had in it a capital sum that would have reduced and ultimately removed entitlement to income support was a little short of two years. The overall period covered by the offence, that is to say by the failure to disclose the existence of the account or the existence of the money in it, was something just over three-and-a-half years. So one is concerned with a lengthy period.
9. The case, however, lacks other features that can aggravate the seriousness of offences of this kind. For example this did not start as a deliberate fraud and there was no sophistication in it. The appellant was entitled in the first place to income support and simply failed, albeit dishonestly, to provide updated information when her circumstances changed. There is nothing to show that the money was put to any use beyond the purchase of day to day necessities. There is, moreover, substantial mitigation, including the plea of guilty, the appellant's lack of significant previous offending, her home circumstances and her long term depression. It is right to note, however, that this is not a case where special consideration needs to be given to the position of a sole carer of young children -- fortunately her relationship with her ex-husband is such that he is looking after the children and there is no serious problem in that connection.
10. Overall we are satisfied that an immediate custodial sentence was justified in this case. The conclusion we have reached, however, is that the matter could have been dealt with by a somewhat shorter sentence. It seems to us that the appropriate sentence is one of 12 months' imprisonment, rather than the 15 months imposed below. The difference is a small one and we have hesitated about making any adjustment in those circumstances, but by reducing the sentence to one of 12 months we will, on the information given to us, create a situation in which the appellant will be entitled to release on home curfew at the very least and it seems to us that the overall justice of the case is such that we can properly produce that result. For those reasons, the sentence of 15 months is quashed and a sentence of 12 months is substituted.