No: 200801359 A9 
Neutral Citation Number: [2008] EWCA Crim 1109
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 1st May 2008

B e f o r e:

LORD JUSTICE GAGE 

MR JUSTICE DAVID STEEL 
 
MR JUSTICE STADLEN 
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R E G I N A 

v 

LESLIE CHRISTOPHER MANKOWSKI
 
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Mr E Soulsby appeared on behalf of the Appellant

Mr N Smith appeared on behalf of the Crown
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Judgment

1.	MR JUSTICE DAVID STEEL:  The appellant, who is now aged 47, was convicted on 31st January 2008 at the Crown Court at Wolverhampton before His Honour Judge Onions for a single count of dishonestly failing to notify a change in circumstances affecting his entitlement to income support, and on 22nd February he was sentenced to 12 months' imprisonment, suspended for 18 months, with a four month curfew requirement pursuant to the Criminal Justice Act 2003.  He appeals against that sentence by leave of the single judge.
2.	The background is this.  The appellant started Income Support Benefit in April 2004.  In so doing he signed a claim form saying he had understood he had to inform the department of anything that might affect his entitlement.  There was nothing in the departmental records to show that he had ever declared that he was in fact working, however since October 2004 the appellant had worked as a newspaper vendor some six days a work, from which he earned £10 per day plus 9 pence on each newspaper sold, amounting to about £66 a week in cash.  In the result the total amount of income support that was overpaid during the period 18th October 2004 to 28th October 2006 was £4,550.  
3.	In interview the appellant said he had been told by someone in the department that he could work 27 hours a work and still claim income support.  He started selling newspapers a couple of months after his claim began and was paid, as he accepts, about £66 per week.
4.	The appellant has a number of previous convictions over a long period of time between 1979 and 2007, including offences of burglary, theft, dishonesty, indecency, assault, harassment and threatening behaviour.  They have been largely dealt with by way of non‑custodial disposals.  
5.	The pre‑sentence report recorded that the offence appeared to have been financially motivated, but the appellant was still maintaining his innocence.  He tended to feel that others were at fault for his offending and it was difficult for him to make meaningful changes in his attitude and behaviour to this outlook.  He had a difficult family background with a number of bereavements, and as a result he was emotionally isolated.  His refusal to accept responsibility indicated a risk of re‑offending.  The recommendation of the pre‑sentence report was for a psychiatric assessment.
6.	The judge recorded the fact that the appellant had now entered his twenty‑ninth year of offending and that time after time the court had bent over to give him sentences in the hope of changing his behaviour without result, because he always considered others were at fault for his offending and would not take responsibility for his actions.  He needed to gain some insight or this serial offending would go on.  Initially his claim was legitimate, but then he got a job and failed to declare it.  Selling papers in the street for £65 was not a comfortable way to earn a living, but it was a job nonetheless and he should have declared it.  The jury had no alternative but to convict.  Given the amount involved there was little point in depriving him of his liberty, but he was on the brink and any further offending would lead to prison.  He would receive a suspended sentence of 12 months which would have been eight months if he had pleaded guilty.
7.	The appeal by Mr Soulsby on the appellant's behalf is directed at the length of the custodial sentence.  His submission in short is, by reference to the decision in Stewart [1987] 9 Cr App R (S) 135, a short term of imprisonment was appropriate in this class of case where the overpayment was less than £10,000.  In considering the appropriate sentence in any individual case the court would have regard to particular features: firstly, whether there had been a guilty plea; secondly, the amount involved and the length of time over which the offence persisted; thirdly, the circumstances in which the offence began, there being a plain difference between a legitimate claim which becomes false on the one hand and a claim which is false from the very beginning; fourthly, the use to which the money is put, i.e. the provision of household necessities is more venial than spending money on luxury; previous character and matters special to the offender such as illness and disability, and any voluntary repayments of the amounts overpaid.  The court had gone on to call for the courts to consider the following questions before sentencing the offender: whether a custodial sentence was really necessary; if it is necessary can it be a community service order, and if not what is the shortest sentence the court can properly impose.  As we have already observed, the court determined that if immediate imprisonment was necessary a short term of about nine to 12 months would usually be sufficient in a contested case where the overpayment is less than £10,000 and that a suspended or partly suspended sentence might be appropriate.
8.	Here, Mr Soulsby says the sum concerned was modest, £4,500 over a period of 16 months.  The appellant was hardly using it to secure a lavish lifestyle.  Indeed, the job that he had sought was not of itself particularly attractive.  The claim was initiated legitimately, an important factor from the perspective of the court, and although he had a large number of previous convictions there was at least no conviction for this type of offence.  
9.	Having considered the matter, we have come to the conclusion that the sentence of 12 months was excessive and we substitute a sentence of four months.  To that extent the appeal succeeds.