Neutral Citation Number: [2011] EWCA Crim 462
Case No. 2010/00002/C2 & 2010/00916/C2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  22  February  2011

B e f o r e:

LORD  JUSTICE  RICHARDS

MR  JUSTICE  EADY

and

SIR  CHRISTOPHER  HOLLAND

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R E G I N A

- v -

VICTOR  TEE
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Mr L Power and Mr A Zoubir appeared on behalf of the Appellant

Mr A Feest and Miss E Fargin appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE RICHARDS:  

1.  The appellant, Victor Tee, was charged with various offences of deception.  On 4 November 2009 he pleaded guilty to three counts of obtaining property by deception, obtaining a money transfer by deception and fraud (counts 3, 6 and 7 on the original indictment).  On 15 December 2009, following a trial at Southampton Crown Court before His Honour Judge Hope and a jury, he was convicted of fourteen counts of attempting to evade a liability by deception (counts 1 to 5, 7 to 9 and 11 to 16 on the re-numbered trial indictment).  On 21 January 2010 he was sentenced to four years' imprisonment concurrent on each of the fourteen attempt counts of which he was convicted by the jury, and to one year's imprisonment, consecutive to the four years but concurrent with one another, on each of the three counts to which he had previously pleaded guilty, thus making a total of five years' imprisonment.  He now appeals against conviction and sentence with the leave of the single judge.

2.  There were a number of co-accused.  Catherine Simpson pleaded guilty to the three counts to which the appellant had pleaded guilty and also to two further counts of furnishing false information.  She was sentenced on each count to concurrent terms of twelve months' imprisonment, suspended for eighteen months, with an unpaid work requirement.  Sheila Madan pleaded guilty at the plea and case management hearing to five counts of attempted evasion of a liability by deception (counts 1 to 5 on the trial indictment) and was sentenced to concurrent terms of twelve months' imprisonment, suspended for eighteen months, with a supervision requirement and a requirement to engage with the Citizens' Advice Bureau debt agency.  Karen Watton was convicted of three counts of attempted evasion of a liability by deception and was sentenced to concurrent terms on each count of forty weeks' imprisonment, suspended for eighteen months, with a supervision requirement.  Rhoslyn Francis and Jean Guy Virginie were acquitted of all charges against them.  The prosecution did not proceed to trial with charges against Paul and Tracy Starr.

3.  The appellant was a financial adviser who advised and assisted people who had got themselves into significant debt.  All the co-accused were clients of his.  

4.  The facts concerning the offences to which he pleaded guilty were these.  In 2005 Miss Simpson applied for housing benefit in relation to a property which she claimed to be renting but in fact owned.  She made false representations in the application, including that the landlord's agents were Victor Tee and Associates.  Letters to the local authority from the appellant supported her application.  £23,000 in benefit was obtained.  Miss Simpson also made false representations, and named the appellant as her accountant, in applications to building societies for the mortgage with which she purchased the property in 2005 and for a re-mortgage in respect of the property in 2007.  When the building societies contacted the appellant he gave false information about her income and finances to support and facilitate her claims.  By his guilty pleas he accepted his involvement in those benefit and mortgage frauds.

5.  As to the offences for which the appellant was tried by the jury, the prosecution case was that he had devised and operated a dishonest scheme which enabled his clients to delay payment on their debts and avoid their creditors who, after a period of unsuccessfully chasing the debt, often gave up on it.  He would advise the client to change their telephone number and pass all correspondence on to him.  He, as the debtor, would then write to the creditor and would supply a new address, 54 Lower Road, Havent, from where he would handle all correspondence.  The creditor would then pursue the debt at the new address instead of at the debtor's real address.  As payment for his services the appellant charged approximately 10% of the amount of the debt.

6.  The counts on which he was convicted alleged more specifically that he and the client dishonestly attempted to induce the client's creditors (mainly credit card companies) to wait for or forgo payment by falsely representing that the client had moved to 54 Lower Road, with the intention that the client should permanently default on their liability to make payments on their accounts with those creditors.  Counts 1 to 5 related to Sheila Madan; counts 7 to 9 to Karen Watton; count 11 to Rhoslyn Francis; and counts 12 to 16 to Jean Guy Virginie.

7.  The defence case was that the appellant ran a lawful commercial business; he had not acted dishonestly; he had not represented to any of the creditors that the client had moved, but had merely provided a new correspondence address; he had made no false representations; he had not intended to commit the substantive offence of evasion of liability by deception; and he had not taken any step that was more than merely preparatory to the commission of the substantive offence, so that what he had done did not amount in any event in law to an attempt.

8.  At the trial, agreed evidence was given relating to the frauds which the appellant accepted having committed with his client Miss Simpson between 2005 and 2007.  It was an investigation into those offences that brought the appellant to the attention of the police, who began to look more closely at his other business activities and at addresses with which he was associated.  It emerged that he was registered on the electoral roll at 54 Lower Road, together with several of the co-accused and other clients.

9.  Other evidence at the trial included evidence from witnesses who had a connection with 54 Lower Road and another address used for this purpose; from witnesses from the credit card companies about their attempts to recover debts from account holders who had notified them of a change of address to 54 Lower Road or to the other address; from police officers about the investigation and seizure of documents associated with the appellant and the co-accused; and from a handwriting expert who confirmed that a number of the documents seized were letters to creditors which purported to be from the co-accused but had in fact been written and signed by the appellant.

10.  The appellant and each of the co-accused gave evidence in their own defence.  

11.  The issue in the present appeal concerns the admission into evidence of the fact that Sheila Madan had pleaded guilty to counts 1 to 5.  Such evidence was admissible under section 74 of the Police and Criminal Evidence Act 1984, subject however to the court's power under section 78 to refuse to allow the evidence to be given "if it appears to the court that, having regard to all the circumstances .... the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". 

12.  Before opening its case, the prosecution applied to adduce evidence of Sheila Madan's convictions.  The application was resisted by the defence and was refused by the judge.  Unfortunately, there is no transcript of his ruling, but it is clear from counsel's note that the judge considered the various authorities drawn to his attention by counsel, to which we will return, and saw "potential unfairness at this stage" in the evidence of the convictions being admitted.  He said, however, that he reserved the right to revisit the matter if he felt that the jury were being misled about Sheila Madan and her status.  

13.  Thereafter, the trial proceeded and the prosecution presented its case without reference to Sheila Madan's convictions.  During the course of cross-examination of the officer in the case, the appellant's counsel elicited information about clients who had been charged but not brought to trial (Mr and Mrs Starr in particular), as well as another client, a Mr Bouramand, who had not been prosecuted.

14.  During his evidence in chief the appellant said things on which the prosecution subsequently relied in support of a renewed application to admit the evidence of Sheila Madan's convictions on the basis that the appellant's evidence had the effect of misrepresenting the position of Sheila Madan and others to the jury in a manner which the judge had clearly had in mind when he made his original ruling.  The relevant passages in the appellant's evidence in chief were these.  First, he described himself as a "debt helper", having operated in the same way for over twenty years and with a client base of 500 plus.  A little later he said:

		"All of my clients have been, and continue to be, referred to me by other clients who are more than satisfied with the way that I have conducted myself and my service."

The appellant said that he insisted on introductions being made by existing clients.  He went on to say that he had appeared in court as a Mackenzie friend for a range of clients, including school teachers, care workers, bank officials and police officers.  The prosecution submitted that the reference to school teachers was, by implication, to Sheila Madan, and the reference to police officers was to Mr Starr.

15.  When asked about the allegation that he had put his head together with Sheila Madan in operating the scheme in an attempt to cause loss to the credit card companies named in counts 1 to 5, the appellant denied the allegation.  He said that it was untrue and that he had not even met Sheila Madan until the proceedings commenced.  This was the only point in his examination in chief when Sheila Madan was mentioned expressly.  It was not in dispute that he had acted for her, but his position was that other people in his office dealt with her.

16.  He was also asked about clients who had been investigated or charged, including Mr Bouramand and Mr and Mrs Starr.  There was a passage of detailed examination of him on documents relating to Mr Starr, in the course of which he said that Mr Starr, a serving police officer, saw no wrong in his dealings with the appellant.

17.  Following the appellant's evidence in chief, the prosecution renewed their application to adduce evidence of Sheila Madan's convictions.  On this occasion the judge acceded to the application.  In his ruling he referred to his earlier ruling and then said:

		"The prosecution submit that Miss Madan's convictions are now made highly relevant in the light of Mr Tee's evidence where he has sought to place before the jury a number of names of other clients of his, including a police officer, who have not been prosecuted in this trial or indeed at all, with the clear inference, in my judgment, that it supports his contention that neither he nor his business methods were in any way dishonest, and should not be considered as being so by anyone.  Indeed, he has indicated that he has been carrying out these activities for some twenty years or more and that nobody has suggested he is being dishonest in connection with them.  

		In my judgment that does now put in a misleading picture before the jury if you [leave] out of the account the situation and status of Sheila Madan.  She engaged with Mr Tee during the relevant period and has now admitted that she was involved in criminal activity in doing so.  Counts relating to her are not conspiracy counts where, as in this indictment, the prosecution concede the two defendants so charged would stand or fall together, but I am going to direct the jury that on the attempting counts they can and must come to separate verdicts in respect of each defendant, and that in those circumstances one defendant could be guilty and one not.

		Accordingly, I do consider that Mr Tee's evidence has now made a material difference to this trial and that there is a very real danger of the jury being misled if they do not now also hear what has happened in relation to Sheila Madan.  I have taken into account the submissions made against this on his behalf, that Mr Tee could not have a fair trial if that were to happen, and that I should continue to exercise my discretion in his favour under section 78 of the Police and Criminal Evidence Act.  But I consider that his evidence has been so emphatic and brought in the conduct of other clients of his, other than these defendants in this trial now, that the jury should now be given the full picture in relation to them and his other clients, and accordingly I grant the prosecution their application to now put Sheila Madan's convictions before the jury if they so wish."

Thereafter, evidence of Sheila Madan's convictions on counts 1 to 5 was placed before the jury in the course of cross-examination of the appellant.

18.  When it came to his summing-up, the judge dealt with the issue in the way he had indicated in his ruling.  He directed the jury of the need to consider the case against and for each defendant separately on each count.  In relation to Sheila Madan's convictions he directed them as follows:

		"Now, members of the jury, you can see that it is alleged in each of these five counts that he, Mr Tee, acted together with Sheila Madan; that is in the particulars of each of those offences that I have set out.  Now, during the course of the trial, members of the jury, you heard that Sheila Madan has pleaded guilty to each of those five counts.  In other words, she for her part accepted that in each of these five circumstances an offence had occurred and that she was a party to each such offence.  Now, it is important that you fully understand that Mr Tee for his part does not accept that any of these five offences have been committed, nor that he was a party to any such offence.  His case, as you know, is that Sheila Madan had merely pleaded guilty to each of those five counts as a matter of expediency, that she is a lady who lives in Kent, that she has no money at all and therefore would be prepared to accept things merely to avoid having to go through the process of trial and hence her guilty pleas.

		Now, because you must consider fully Mr Tee's submission on each of these five counts separately, you must come to your own separate conclusions on the evidence presented before you as to whether, in respect of each of those five counts, you are sure that the prosecution has proved that an offence has occurred in each of these separate counts and, if you are sure that it has, then whether Mr Tee was a party to any such offence.  If you are not sure on any of these five counts that all the ingredients of the alleged offence have been proved, or that Mr Tee was a party to it, then Mr Tee is entitled to be found not guilty on any count where that applies, whatever Sheila Madan may have done on that count and that is because, as I have stressed to you, you must consider the case against and for each defendant separately on each separate count and come to your own separate conclusions."

The judge went on to direct the jury in detail as to what the prosecution had to prove so as to make the jury sure of the appellant's guilt on the offences of attempting to evade liability by deception, including the need to prove dishonesty as well as a deliberate deception.

19.  For the appellant Mr Power submits that the judge erred in the exercise of his discretion under section 78 of the 1984 Act, and that he was wrong to allow the evidence of Sheila Madan's convictions on counts 1 to 5 to be led and that his error was not capable of being cured and was not cured by his directions to the jury.

20.  Before summarising Mr Power's submissions any further, it is convenient briefly to summarise what the authorities are.  They were cited to the judge.  In R v Curry [1988] Crim LR 527, the appellant was charged with conspiracy to obtain property by deception.  One of her co-accused pleaded guilty and the trial judge allowed the prosecution to adduce evidence of that conviction to establish the existence of an unlawful agreement to deceive.  The Court of Appeal quashed the conviction, holding that the jury would be bound to use the evidence as showing not only that there had been a conspiracy, but that the appellant had been a party to it, and that the evidence should have been excluded under section 78 as weighting the case unfairly against the appellant.  The court said that the power to admit evidence under section 74 should be used sparingly, particularly so in relation to joint offences such as conspiracy.  Where the evidence sought to be placed before the jury by virtue of section 74 expressly or by necessary inference imported the complicity of the person on trial, it should not be used.

21.  In R v Kempster [1989] 1 WLR 1125, the appellant was charged on an indictment alleging four counts of robbery and one of burglary, on which he was jointly charged with others.  The guilty pleas of the co-accused were admitted into evidence.  The Court of Appeal was critical of the fact that they had been let in without any clear indication of the purpose of doing so and in particular of whether it was intended to rely on them as evidence of the appellant's guilt.  Had there been such an indication, the judge might well have excluded them under section 78, and since the jury had been encouraged to rely on the evidence without the benefit of a clear and informed decision by the judge as to any adverse effect the evidence might have on the fairness of the proceedings, the convictions were regarded as unsafe.

22.  In R v Stewart [1999] Crim LR 746, the appellant was charged with offences of kidnapping, robbery and attempted robbery.  Convictions of a co-accused were admitted into evidence as evidence that offences of robbery and kidnapping had taken place.  The appellant's appeal against conviction was dismissed.  The Court of Appeal said that section 74 should be used sparingly, but could and should be used in a proper case.  The requirements for its use were satisfied here and the judge was careful to direct the jury that the co-accused's pleas of guilty were not evidence that the appellant was guilty.  As to section 78, the court pointed out that it had been said on many occasions that the exercise of discretion must have regard not just to the interests of the defendant but to the interests of the prosecution and of justice as a whole.

23.  With that introduction we turn to summarise Mr Power's written and oral submissions.  First, he submits that the counts on which Sheila Madan was jointly charged with the appellant were akin to conspiracy counts, whereby her guilt was impossible without his.  The participation of clients in the appellant's scheme was by agreement between the appellant and the client who signed up to a scheme already put in place.  They could only be guilty by buying into a dishonest scheme; and if they were guilty, he asks rhetorically, how could the appellant not be guilty?  He submits that even the prosecution presented its case on the basis that, should the jury find the appellant not guilty of the attempt counts, they should return not guilty verdicts in respect of the co-defendants.

24.  Mr Power referred us to the way in which the judge directed the jury on the issue of joint responsibility.  At that point of his summing-up the judge first reminded the jury of the prosecution case that the appellant was the leading light in all of these matters and had devised a dishonest scheme, and of the defence that the appellant was running a commercial business and was not dishonest.  He went on to ask:

		"But what about others who decided to join him in his scheme?  Do they also become liable as party to attempting to commit a crime and so jointly responsible in law?"

The judge then gave a standard direction on joint enterprise and went on to explain how it applied in the circumstances of a case of this kind.  Mr Power submits that it was a fallacy in these circumstances to suggest that Sheila Madan could be guilty of the offences with which she was jointly charged with the appellant without the appellant also being guilty as the person who devised the scheme.  It was inescapable that the jury would conclude that if she was guilty of being involved in a dishonest scheme, then so must the appellant be guilty.  That line of argument is said to be reinforced by the positions adopted by counsel for the co-accused in their closing speeches, that if the appellant was not guilty then the co-accused should be acquitted. Alternatively, if we have understood Mr Power's submissions correctly, he says that even if Sheila Madan's convictions did not lead logically to the appellant's guilt, they were nonetheless highly prejudicial as being likely adversely to influence the views of the jury regarding the credibility of his case and his evidence about it.

25.  Mr Power further submits that the judge gave disproportionate and illogical weight to the issue of whether the jury might be misled by what the appellant had said in his evidence in chief.  Whether a false impression had been created had no bearing on the admissibility of Sheila Madan's convictions.  Moreover, the evidence given by the appellant had been factually accurate and it was perverse to suggest that the jury could be misled by it.  In any event, there was no adequate justification for the alteration in the judge's position as set out in his initial ruling.  The appellant asserted throughout that his business practices in respect of debt management were honest, and nothing in his evidence in chief changed any of that.

26.  It is also submitted that in the circumstances of this case  directions by the trial judge, no matter how strong, were unable to eliminate the real danger of injustice caused by the jury hearing of Sheila Madan's convictions and that the directions actually given by the judge for that purpose were insufficient to meet the problem.

27.  In summary, for those reasons it is submitted that the judge's ruling on the application of section 78 was Wednesbury unreasonable and that the judge erred in law in his approach to the question of the fairness of the trial process when making his ruling.  It is said that the wrongful admission of Sheila Madan's convictions had an effect not just on counts 1 to 5 but, inevitably, given the nature of the appellant's scheme,  on the other counts as well.

28.  The court did not find it necessary to call on Mr Feest for the prosecution by way of oral submissions.  His position is set out clearly and sufficiently in his written skeleton argument.  In that document he submits that the judge's decision to allow Sheila Madan's convictions to be adduced was a lawful exercise of discretion under section 78.  Alternatively, he submits that, even if the convictions should not have been allowed in, the error did not affect the safety of the convictions, given the overall strength of the case against the appellant.

29.  As to section 78, Mr Feest submits that the effect of the appellant giving evidence in the way he did was to misrepresent to the jury the position of Sheila Madan and others in just the manner that the judge had in mind in the course of his original ruling.  The thrust of the evidence was to state not only that the scheme was legitimate and honest, but that the appellant had carried it out over a number of years and for a variety of clients without any complaint or difficulty.  This was a misrepresentation of the true position because Sheila Madan had accepted her part in an illegal and dishonest scheme.  This changed the consideration of fairness which the judge had to make under section 78.  The assessment of fairness encompasses fairness to the prosecution and to the interests of justice as well as to the defendant.  The test of fairness must involve consideration of whether the appellant had created a false impression or misled the jury by giving evidence in a particular way.

30.  Mr Feest also takes issue with the contention that, once Sheila Madan's convictions were admitted into evidence, it was inescapable that the jury would find the appellant guilty of the offences.  These were charges not of conspiracy but of joint enterprise.  The main issue for the jury was whether the appellant had been acting dishonestly or had an intention to make permanent default.  In deciding that issue the jury had a wealth of other evidence in the jury bundle.  The judge reminded the jury a number of times that they would need to consider each defendant separately and could come to separate verdicts in relation to any given count.  He did not direct them that they could not find another defendant guilty if they found the appellant not guilty.  It was open to the jury to find the case proved against one defendant but not against the other in relation to any given count.

31.  Mr Feest's final submission is that the judge's directions dealt with the issue of Sheila Madan's convictions clearly and in a manner favourable to the appellant.

32.  It is unnecessary to summarise Mr Feest's alternative submission concerning the safety of the convictions because we are satisfied that he is correct in his primary defence of the judge's ruling to allow in Sheila Madan's pleas of guilty.  Our reasons are these.  First, we take the view that the judge directed himself correctly in his ruling.  He plainly had in mind the authorities to which he had been referred at the time of his first ruling.  There is nothing to suggest that he misunderstood the principles emerging from those authorities.  It was absolutely right and in accordance with what had been said in Stewart for him to have regard under section 78 to the fairness of the proceedings as a whole and to be concerned about the need to avoid the jury being misled.  It was open to the judge to conclude that, given what the appellant had said in evidence in chief, taken with the questions put in cross-examination to the officer in the case, the jury were at risk of being misled about Sheila Madan's position.  Although we have the transcripts and have been taken to the relevant passages, the judge was in the best position to have the true feel of the impression conveyed by the evidence to which we have been referred.  In any event, we see nothing wrong with the conclusion he reached in his ruling as to the risk of the jury being misled.  It was also open to the judge, in our judgment, to conclude that the admission of the evidence would not have such a prejudicial effect on the appellant that the evidence ought for that reason to be excluded.  

33.  We reject the argument that it was inescapable, once the jury heard of Sheila Madan's convictions, that they would find that the appellant was also guilty.  Counts 1 to 5 were not counts of conspiracy or of a similar offence.  Joint enterprise was relied upon, but it left open the question whether the ingredients of the offence were satisfied in the separate case of each of the defendants charged, including, most importantly, whether the particular defendant had acted dishonestly.  Even if it was unlikely that the other defendants would be found guilty if the appellant was found not guilty -- and it is understandable that their counsel adopted that position in closing speeches -- that was not a legally necessary conclusion.  Sheila Madan's pleas of guilty did not necessarily presuppose the appellant's own guilt.  Moreover, we note that Sheila Madan's decision to plead guilty was explained away by the appellant as being based on expediency.  It seems to us that in the end it was for the jury to decide whether, on the evidence as a whole, the appellant's own guilt had been proved.  We do not accept that knowledge of Sheila Madan's pleas of guilty would have caused them to leap unfairly to their conclusion.

34.  The judge gave an accurate and appropriate direction on this issue.  He focused the jury's attention on the appellant's own separate position and to the need to give separate consideration to the evidence relating to him.  It did what the judge said would be done at the time when he made his ruling that the evidence of Sheila Madan's convictions could be admitted.  

35.  In the circumstances we are satisfied that the judge exercised his discretion lawfully under section 78 and that the admission of Sheila Madan's convictions into evidence provides no basis for challenge to the appellant's own convictions.  It does not cause us to doubt the safety of those convictions.  

36.  Accordingly, the appeal against conviction is dismissed.

37.  We turn to the appeal against sentence.  The appellant was sentenced to four years' imprisonment concurrent on each of the fourteen attempt counts on which he was convicted, and to one year's imprisonment consecutive on the three counts to which he had previously pleaded guilty, making a total of five years' imprisonment.

37.  At the time of sentencing the appellant was 61 years of age.  He was treated by the judge as a man of effectively good character.  Account was taken of the effect of the sentences on his family.

38.  In his sentencing remarks the judge referred to the dishonest scheme.  He said this:

		"You chose to make it part of your case before the jury that you had been doing this for twenty years with some 500 clients and I notice also that even once you had been interviewed and charged by the police you then had printed 100,000 leaflets setting out your scheme, to have them distributed, which you proceeded to do, even to the custody officer in the dock during the course of the trial ....

		This was systematic fraud, the indictment covering some £120,000 worth of debt, but it is not simply such an amount that is of relevance.  You sought to use the misfortunes of others to your advantage, people who trusted you at the time.  You were the instigator of this scheme and ran it fully with others, you being in charge of it.  It was a scheme that was run by a man shown on the evidence to be riddled with dishonesty, but I note from the pre-sentence report that you do not accept the jury's verdicts and even now seek to justify your actions."

The judge said that he bore in mind that the offences were attempts, but they were nevertheless very serious attempts which the appellant fully hoped would succeed.

39.  In relation to the offences with Miss Simpson, the judge said that some £23,000 had been obtained through the housing benefit deception and sums of £340,000 and £440,000 had been advanced under the mortgage and re-mortgage respectively.  This again was systematic fraud.  The appellant and Miss Simpson were jointly responsible as it would not have happened in the way it did without them both acting jointly and dishonestly.

40.  The appeal against the sentence for those benefit and mortgage frauds is based solely on an argument of unjustified disparity as between the appellant and Miss Simpson, who received a twelve month suspended sentence.  It is said that the appellant's criminality was less serious than hers and that he ought to have received a lesser sentence.  Particular points made are that she alone received the financial advantage of the benefit fraud, whereas he merely facilitated her claim and received no financial benefit.  The same was true of the mortgage frauds.  In each case she was the more active participant.  She had numerous previous convictions for dishonesty, whereas the appellant was a man of previous good character.  She had already been participating actively in benefit fraud from 2001 to 2005 prior to the appellant's involvement.

41.  For our part we are not persuaded that the judge was in error in regarding the appellant and Miss Simpson as jointly responsible or in imposing the sentences that he did on the appellant in respect of these offences.  It had always been the prosecution case that the appellant used his financial know-how and contacts to obtain the mortgages and had provided her with false details to use for all of the offences.  The appellant did not put forward any restrictive basis of plea when he pleaded guilty to these offences.  He cannot rely on previous good character as a distinguishing feature in circumstances where he was being sentenced at the same time for the fourteen offences of dishonesty of which he had been convicted by the jury.  His criminality in that respect is plainly a relevant consideration when comparing the question of equality of treatment as between him and Miss Simpson.

42.  The sentences for the other fourteen counts made it inevitable that the appellant would be sentenced to an immediate custodial sentence for the offences committed together with Miss Simpson, even though the judge found it possible to impose a suspended sentence in her case.  There was no objectionable disparity in the imposition of a sentence of one year's immediate imprisonment on the appellant but a suspended sentence of the same length on Miss Simpson.  In our judgment there is nothing in this part of the appeal.

43.  As to the sentence of four years' imprisonment for the fourteen attempt counts, the cumulative amount covered by those counts was just under £120,000.  The highest single amount covered by any individual count was just under £17,000.  It is submitted that the closest guidance is the Sentencing Guidelines Council's definitive guideline for banking fraud and like offences and that the relevant category is that where the amount obtained is between £100,000 and £500,000 and the nature of the offence is "fraudulent from the outset and either fraud carried out over a significant period of time or multiple frauds".  For that category there is a starting point of three years' custody and a range of two to four years.

44.  Mr Power submits that the appellant's offending should fall towards the lower end of the range, given that (a) the full offences in this case carried a maximum sentence of five years, whereas the guideline offences have maxima of seven or ten years; (b) these were attempts, not full offences; and (c) the total amount obtained was towards the bottom of the bracket.  There is also a contention that the judge's reference to the appellant having been "doing this for twenty years" showed that he was sentencing not just for the offences of which the appellant had been convicted but for conduct with which he had not been charged.

45.  We do not accept that the judge sentenced for anything other than the offences of which the appellant had been convicted.  It is plain to our minds that he did not treat these as specimen offences and he did not impose sentences for anything other than the specific counts in respect of which the appellant had been convicted.  The observations to which objection is made in his sentencing remarks merely set the context within which the offences of which the appellant had been convicted fell to be assessed.

46.  The guideline range of two to four years, which we have mentioned and to which the judge was referred, is in our judgment relevant and helpful.  However, we accept that this offending, serious though it was, fell towards the lower end of that range, having regard to the various matters put forward by counsel.  Of course, there were fourteen distinct offences, but it was the element of repetition which gave the offending the character of offending over a significant period or of multiple frauds, thereby bringing it into the category where the guideline range of two to four years applied.

47.  The judge imposed a sentence at the very top of that range.  We have come to the conclusion that such a sentence was too high, especially when the consecutive sentence for the offences relating to Miss Simpson and the principle of totality are taken into account.  In our judgment an appropriate sentence in this case would have been one of three years' imprisonment concurrent on each of the fourteen attempt counts, and four years' imprisonment in total.  We do not accept Mr Power's submission that a sentence lower than that would have been appropriate.

48.  We will therefore allow the appeals against sentence on counts 1 to 5, 7 to 9 and 11 to 16, quash the concurrent sentences of four years' imprisonment on each of those counts and substitute in each case concurrent sentences of three years' imprisonment.  The consecutive sentences of one year's imprisonment on each of the three other counts will stand.  The total sentence will therefore now be four years' imprisonment in place of the previous total sentence of five years' imprisonment.

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