England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 27th May 1999

B E F O R E :

LORD JUSTICE MANTELL

MR JUSTICE BLOFELD

and

HIS HONOUR JUDGE FABYAN EVANS

(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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CHERYL ELEANOR EVANS

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR NICHOLAS LOBBENBERG appeared on behalf of the APPELLANT

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 27th May 1999 .

LORD JUSTICE MANTELL: On 5th October 1998 at Snaresbrook Crown Court the appellant was arraigned on an indictment containing 24 counts charging offences of furnishing false information and procuring the execution of securities by deception. She pleaded guilty to four counts and not guilty to the balance. The pleas were not accepted. On 14th October 1998, following a trial which had lasted ten days, she was convicted of the remaining twenty counts. On 6th November 1998 she was sentenced to a total of three years' imprisonment concurrent on each count.

Her co-accused, Donovan Dennis, who was much less involved, was convicted on three counts only and sentenced to 80 hours' community service.

The appellant has renewed her application for leave to appeal against sentence following refusal by the single judge and becomes the appellant by virtue of the fact that this Court as presently constituted granted leave to appeal.

We rehearse the facts briefly. The appellant was engaged in a housing benefit fraud which involved activities spanning some four-and-a-half years ending in her arrest on 20th August 1996. It was said that the fraud netted at least £25,000 and involved claiming private sector housing benefit relating to some eleven different basic claims, which in the main had been repeated over and over again. The prosecution felt constrained to proceed on an indictment containing sample counts which in total alleged a sum of no more than £2,807.81. The indictment had been shaped to allege offences of furnishing false information, followed by sample counts of procuring the execution of valuable securities, which were in this case cheques, those being obtained, so it was alleged, by deception.

Counts 2-9 inclusive related to applications in the appellant's own name in respect of premises at 76a Graham Road, Hackney, which the local council came to realise was one of their own properties. The appellant had given her National Insurance number correctly all bar one digit. She gave the name of a landlord at an address that did not exist and submitted false tenancy agreements; and so it was that for over two years the money came rolling into her bank account by way of periodic cheques, four of which became the subject of counts in the indictment.

Counts 10, 11 and 12; in these cases the appellant made a claim for private sector housing benefit in the false name of Marie Anderson for an alleged tenancy at 79 Portelet Court, London N1. It was supported by false details of an employer and the landlord was said to be a Mr R.Patel of 14a Castlewood Road, Stamford Hill, an address which was in fact jointly owned by the appellant and her sister. Again the money came rolling in.

Counts 12, 13 and 14 concerned a private sector housing benefit claim in the false name of Sharron Dennis for a tenancy at 79 Portelet Court, supported by a tenancy agreement which indicated that Miss C. Evans of the same address was the landlord.

The same kind of fraud was repeated in respect of a number of different premises and in a variety of false names supported by clutches of fraudulent documents. This was reflected by the remaining sample counts in the indictment.

When the appellant was finally arrested, a large quantity of documents relating to the frauds were found at her house.

The appellant was 32 years of age at the date of sentence and had two previous convictions for offences of dishonesty. The report noted that she had been profoundly affected by her remand in custody following her conviction.

In passing sentence the judge said:

"You have been found guilty by a verdict of the jury of being involved over a period of just over four years of what can only be described as a highly, sophisticated, professional fraud, both on the general public as taxpayers and on the unfortunate inhabitants of the Borough of Hackney who will have to pay out of the housing revenue account the housing benefit they themselves have to contribute, because that is the way the system works.

These offences are extremely serious. Those who receive help from the state must expect to be severely punished if they break the law by taking money to which they are clearly not entitled. There is no possible doubt that you knew absolutely what you were doing ... and you were a major player. Others may have been involved as well - but you were a major player in a substantial and significant fraud over a substantial period of time, involving a sum in excess, at least I am sure, of £25,000.

An offence of this nature calls in my judgment for a sentence which carries an element of deterrence. It is vitally important that those who are tempted to abuse the system know very well that they will obtain from the court, if convicted, condign punishment."

We have no doubt that the learned trial judge, on the evidence that he had heard at first hand, was fully entitled to come to that view. We also think it highly probable, in view of the sweeping verdicts of guilt which the jury returned, that they were of the same view; nevertheless, the indictment, restricted to its sample counts, was not a suitable vehicle to confirm whether that was so.

The only ground of appeal which Mr Lobbenberg now pursues on behalf of the appellant is a submission that the learned trial judge fell into error by sentencing the defendant for crimes of which she had not been convicted and which she had not admitted. He points out that the learned trial judge specifically said that he was sentencing the appellant for a fraud involving £25,000 when the jury had only convicted her of counts involving £2,807.

The question of sentencing on an indictment containing sample counts has been the subject of review by this Court on a number of occasions in recent years. It was at the centre of the consolidated appeals of Canavan, Kidd and Another [1998] 1 Cr App R (S) 243. At page 245 the Lord Chief Justice giving the judgment of the Court stated:

"If a defendant is indicted and convicted on a count charging him with criminal conduct of a specific kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may the court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?"

The Court then went on to consider a number of earlier cases in which the point had been raised. In particular it referred to Clark [1996] 2 Cr App R (S) 351 and Bradshaw [1997] 2 Cr App R (S) 128. In Clark, which was a case where the appellant had faced a single count of indecent assault and which was said to reflect the appellant's conduct over a two year period, this Court had decided the question in the negative. In Bradshaw, a case involving a fraudulent investment scheme said to have netted £3 million but of which only £97,000 had been the subject of counts in the indictment, the answer had been in the affirmative. The Court in Canavan went on to draw attention to various sections of the Criminal Justice Act 1991 and to point out that this Court does not understand the terms of that Act to legitimise the practice of sentencing for unindicted unadmitted offences. The Lord Chief Justice said:

"We conclude that the court reached the correct conclusion in Clark, and to the extent that that decision is at variance with other authority, it is in our judgment to be preferred. Prosecuting authorities will wish, in the light of this decision and Clark, to include more counts in some indictments. We do not think that this need is unduly burdensome or renders the trial unmanageable."

Mr Lobbenberg has drawn our attention to the case of Rosenburg [1999] Crim LR 94, in which it had been alleged that the appellant had fraudulently obtained £30,000 by way of income support but had only been convicted on nine counts relating to amounts totalling £2,500. This Court applied Clark and reduced a sentence of 30 months to two years.

In the case of this appellant we have some sympathy with the trial judge when he came to pass sentence. The prosecution had presented their case against her in 24 counts. We are told that, had every cheque which had been procured been included in this indictment as a separate offence, there would have been 200 counts or more. We cannot see any judge embarking upon a trial with a jury in those circumstances with any degree of enthusiasm and without firmly insisting that the number of counts be substantially reduced. Likewise, it might well be considered unacceptable to proceed on a number of separate indictments. Also we regard it as unrealistic to expect any defendant who has contested a case of this nature, upon being convicted, to ask for offences to be taken into consideration which he has hitherto denied. The consequence may well be that a defendant who has pleaded guilty and confessed the full extent of his fraud may be treated more harshly than a defendant who has contested the matter but has only been convicted in respect of so-called specimen counts. We have no doubt that the anomaly will be exploited by those who otherwise have no answer to a multitude of charges, a tactic of which this case is an acute illustration. Also it may be that some will attempt to apply the undoubted logic of Clark and Canavan to other situations, perhaps in connection with Newton hearings, or other occasions when hitherto the judge has been able to form his own view of the facts as to the basis of a jury's verdict. However, it is not within the province of this Court and certainly not on this occasion to suggest any solution. It may be it is something which can be overcome by the ingenuity of those who frame indictments. For the time being, however, we simply remark that the position is far from satisfactory.

In view of those earlier decisions of this Court referred to in the course of this judgment, it seems clear that the trial judge, faced with this indictment, was not entitled to pass sentence on the basis that the loss had been £25,000.

We have therefore had to reconsider what the appropriate sentence should be bearing in mind the guidelines which are to be found in the cases of Stewart (1987) 1 Cr App R (S) 135 and Adewuyi [1997] Cr App R (S). We take the view that, quite regardless of the sums that were obtained, this was a persistent and sophisticated fraud which displayed considerable guile on the appellant's part. This is not a case where there has been only one principal act of dishonesty which has led to the automatic payment of regular sums. Interlocking frauds of complexity have been revealed, supported by fraudulent documents in some quantity.

In the end, with some misgivings, we have come to the conclusion that this appeal must be allowed, and that taking into account such limited personal mitigation as there was following a contested trial, the sentence of three years must be quashed and replaced by a sentence of two years' imprisonment concurrent on each count. To that extent this appeal against sentence is allowed.

Is there any application? Did we deal with the question of legal aid last time?

MR LOBBENBERG: My Lord, you did.

LORD JUSTICE MANTELL: Very well.