APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Brodie Lord Turnbull	[2014] HCJAC 106 HCA/2014/2817/XJ   OPINION OF THE COURT   delivered by LORDBRODIE   in   APPEAL AGAINST SENTENCE   by   TERENCE RYAN   Appellant;   against   PROCURATOR FISCAL, ABERDEEN   Respondent:   _____________

 

Appellant:  D Moore, advocate;  Faculty Services

Respondent:  Cleland, advocate depute ad hoc;  Crown Agent

 

29 August 2014

[1]        This is an appeal against sentence by Terence Ryan who pled guilty before the sheriff at Aberdeen at a trial diet on 8 May 2014 in respect of a charge brought on summary complaint which was in the following terms:

“Between 6 April 2009 and 11 June 2012 both dates inclusive at [an address] you TERENCE CHARLES RYAN did knowingly fail to give prompt notification in the prescribed manner to the Department of Work and Pensions the prescribed person, of a change of circumstances which you knew affected your entitlement to benefit or other payment of advantage namely Incapacity Benefit, as defined in the aftermentioned Act, in that you failed to report that you were working as a self-employed driver and you did thereby obtain Incapacity Benefit of  £13,000 to which you were not entitled;  CONTRARY to the Social Security Administration Act 1992 section 111A (1A)”

 

[2]        The case was continued for sentence until 5 June 2014.  The appellant was admitted to bail.  On 5 June 2014, the sheriff heard the appellant’s agent in mitigation.  It is clear from the sheriff’s report that the submissions were in very full terms.  They are summarised in the note of appeal.  Among the points made was that the appellant had offered to pay the full amount of £13,000 immediately as a lump sum but the Department of Work and Pensions had insisted on a periodical payment which the appellant was currently paying (at a rate, so we were advised by Miss Moore who appeared on behalf of the appellant, of £85 per month).  Moreover, the appellant has the tenancy of a specially adapted house and a sentence of imprisonment would put that tenancy at risk.  Before the sheriff it was submitted that the case should be dealt with by a non-custodial disposal, the suggestion being a level 2 community payback order.              Having heard the appellant’s representative in mitigation, the sheriff imposed a sentence of 5 months imprisonment.  In what is a full and careful report, the sheriff explains his reasoning.  He had regard to the sentencing guidance available from the cases of Gill v Procurator Fiscal, Glasgow [2010] HCJAC 99, 2011 SCL 164 and Bradley v Procurator Fiscal, Falkirk [2010] HCJAC 136.  The sheriff explains that he restricted the period of the custodial sentence to 5 months in order not to put the appellant’s tenancy at risk.  He makes the point that, having regard to the date when the offending commenced, a community payback order would not have been competent. 

[3]        A note of appeal was lodged on 12 June 2014 and the sheriff admitted the appellant to bail on 13 June 2014.

[4]        Before us, Miss Moore first referred to the form 19.18 in which there is set out an articulate statement of reasons in support of the appeal.  That document reiterates the principal points made in the plea in mitigation which was presented before the sheriff.  It draws attention to the fact that in 1998 the appellant suffered a serious industrial injury as a result of which he was assessed as 50% disabled.  He was not at that time assigned an adviser by the Department of Work and Pensions to provide him with guidance as to his entitlement to benefit.  He suffered depression which continued until at least 2009 and while it was accepted that from April 2009 he had begun delivery driving for a friend, at that stage he was under the impression that he could work 20 hours per week without that affecting his entitlement, albeit that he failed to clarify the position with the Department of Work and Pensions.  The appellant was repaying the Department of Work and Pensions the £13,000 wrongly claimed.  The appellant was remorseful.  It was submitted that the sheriff’s approach was flawed.  That latter point was developed by Miss Moore in argument.  She referred us to the case of Gill and also the case of Bradley, submitting that the sheriff had not properly applied the guidance to be found there. She further submitted that the sheriff had not been entitled to come to the conclusion that the appellant was not suited for the imposition of a requirement for unpaid work.  A community payback order might be incompetent but, Miss Moore reminded us, it was open to the court to impose a probation order with a condition that the appellant carry out unpaid work.

[5]        Before going further, we would like to clear two matters out of the way.  As the sheriff observes in his report, it was said on behalf of the appellant in the course of the plea in mitigation and repeated in the note of appeal that the appellant did not fully understand what he was entitled to claim by way of social security benefits and how any work he was doing might impact on that.  Although not elaborated by Miss Moore in her oral submissions, a suggestion to that effect also appeared in the written presentation of reasons in support of the grounds of appeal which is to be found in the form 19.18.  On this point we entirely agree with the sheriff.  The appellant pled guilty to a charge of knowing failure to give prompt notification of a change in his circumstances over a specified period of time.  Having done so, it was not open to him to claim any degree of ignorance, excusable or otherwise, as to what he should have done.

[6]        A further point taken on behalf of the appellant was equally without substance.  The appellant had not been served with a notice of previous convictions.  Although eventually withdrawing the point, Miss Moore had initially maintained that as a result the appellant should have been treated by the sheriff as a first offender.  That is not the law where, as here, the information as to previous offending is disclosed in a court-ordered report and the appellant and his advisers have the opportunity to challenge anything in that report which they claim to be inaccurate:  Sharp v Stevenson 1948 SLT (Notes) 79, Sillar v Copeland 1966 JC 8, Penman v HMA 1999 SCCR 740 at 744.  Miss Moore accepted that it was clear from the terms of the sheriff’s report that the appellant’s agent had discussed the appellant’s previous offending with the sheriff and that accordingly the opportunity had been available to challenge any inaccuracy.  Accordingly, the information was properly before the sheriff and he was fully entitled to have regard to the appellant’s previous offending history when considering sentence.

[7]        We consider that there was more force in Miss Moore’s submission that the sheriff’s approach to the question as to whether an alternative to custody could and should be considered and to the further question as to whether in fact such an alternative was realistically available was flawed.

[8]        The sheriff had had accurately identified Gill v PF Glasgow supra as providing guidelines to sentencing in cases of this sort. He also mentioned Bradley v PF Falkirk supra, where Gill was considered.  In Gill, the court had been referred to the English Sentencing Guidelines Council’s Definitive Guideline on Sentencing for Fraud – Statutory Offences.  In the Definitive Guideline the nature of the offence is categorised by the amount obtained by the fraudulent behaviour. In respect of cases where the amount obtained is in the range  £5000 to  £20,000, a “starting point” is identified at the middle of the range figure of  £12,500. Where the behaviour is not fraudulent from the outset but the fraud is carried out for a significant period (a case such as the present) the Definitive Guideline indicates a starting point sentence of 6 weeks with possible disposals ranging from a community order, on the one hand, to 26 weeks custody, on the other.  In giving the opinion of the court the Lord Justice Clerk said this at paragraph [19]:

“Care must be taken when considering formal Guidelines from England, even in relation to United Kingdom statutory offences, because of divergent sentencing powers and practices in the two jurisdictions.  For example, the Scottish courts do not have the power to suspend prison sentences, a common feature in English sentencing practice. Furthermore, the Scottish courts now have to keep in mind the presumption against short sentences of imprisonment; that is to say those of three months or less (Criminal Justice and Licensing (Scotland) Act 2010 section 17, amending section 204 of the Criminal Procedure (Scotland) Act 1995).  …  The court does 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.”

 

The sheriff read the guidance provided in paragraph [19] of Gill as indicating that a prison sentence was likely to be the most appropriate disposal where the sum involved was £13,000 unless there were “quite exceptional circumstances”.  This clearly constrained his decision-making.  He observes, and we would respectfully agree with his observation, that accused persons convicted of this particular offence commonly present as vulnerable individuals suffering from all manner of social and personal difficulties.  Having accepted that the appellant also has such difficulties, the sheriff goes on to state that the appellant’s circumstances were not “sufficiently exceptional” to allow him to conclude that a sentence other than one of imprisonment would be appropriate.

[9]        That is not quite how we would understand Gill or how we would view the present case.  Given that the amount wrongfully acquired was £13,000 this case lies almost halfway in the range of £5000 to £20,000 discussed in the passage quoted above.  It is therefore more or less equidistant from cases where the norm is imposition of a community-based disposal and those where the norm is imposition of a significant period of custody (the Definitive Guideline figure for the high end of the range being 26 weeks).  Either option might be appropriate but regard has to be had to the presumption against short sentences of imprisonment; imposition of the English starting point sentence of 6 weeks would offend against that (taking that as a sentence that would necessarily be served, as opposed to being suspended).  Regard would have to be had to all the circumstances of the case but where the amount in question is £13,000 we would not see these circumstances as having to be “quite exceptional” in order to avoid a prison sentence.  It would be different had the sum been close to £20,000.

[10]      We would see our understanding of Gill to be consistent with the approach taken by the court in Bradley. In that case a convicted person with a vulnerable personality who had encountered a number of difficulties in the past had acquired a sum in excess of £10,000 beyond her entitlement to benefits by failing to disclose a change in her circumstances.  She was repaying the funds that she had wrongly obtained.  On appeal from a sentence of 8 months imprisonment, this court quashed that sentence and substituted a community service order requiring 200 hours of unpaid work.

[11]      Moreover, although the appellant was not a first offender, as had been the case with the appellant in Bradley, he had not previously served a sentence of imprisonment.  Therefore in circumstances where it cannot be said that application of the guideline would necessarily require the imposition of a custodial sentence, the appellant has the benefit of the protection afforded by section 204 (2) of the Criminal Procedure (Scotland) Act 1995; in order to impose a custodial sentence, the court must consider that no other method of dealing with the appellant is appropriate.  We accept that this includes having regard to the practicalities of the matter and, very obviously, the competency of alternative disposals.  The sheriff correctly appreciated that given the date of commission of the offence, he could not impose a community payback order.  However, as was said by Miss Moore, it was open to him to impose a probation order with a special condition requiring the completion of unpaid work.  The criminal justice social work report indicated that an unpaid work requirement was an available option; the appellant had successfully completed such a requirement, which had been a condition of a previously imposed probation order, on 30 June 2012.  The sheriff, however, was sceptical:

“I sensed from many years of experience of encountering these situations that it may not have been long before an application was received from the social work department stating that it was experiencing difficulty in managing the order due to the appellant’s state of health.”

 

Agreeing with Miss Moore’s submission, we do not consider that the sheriff was entitled to reject the practicality of unpaid work in the way that he seems to have done.  We recognise that this sheriff does indeed have many years of relevant experience.  We do not doubt that that experience includes cases where convicted persons have expressed their willingness to carry out unpaid work and then, for whatever reason, later represented that they were in fact unable to do what was required of them.  We immediately see that that may be a route whereby some convicted persons, perhaps acting in less than good faith, effectively avoid punishment.  However, any judge must be careful about applying conclusions as to the likelihood of matters turning out in a particular way where these conclusions are drawn from the generality of cases of which he has experience, to the circumstances of a particular case.  What were before the sheriff here were the appellant’s case and the appellant’s particular circumstances, not other cases and not other circumstances.  In relying on what he “sensed” from “many years of experience”, rather than the specific information which had been put before him, the sheriff laid himself open to the criticism that he had closed his mind to the option of imposing a requirement for unpaid work.  According to the criminal justice social work report

“Mr Ryan advises that his physical health difficulties will not affect his ability to comply with an unpaid work requirement and a suitable placement will be assigned.”

 

That was the information that the sheriff had which was specific to the case.  If he was to reject it he could only do so on the basis of other information which was also specific to the case.  It does not appear to us that the sheriff had such other information before him.

[12]      What we would see to be appropriate when determining sentence in this case is to regard it as one falling at the mid-point of the range identified in Gill by reference to the amount wrongfully obtained and therefore one where a non-custodial disposal is an option to be considered.  Among non-custodial disposals, on the information available to the court there is the possibility of imposing a requirement for unpaid work.  Determination of the appropriate sentence must depend upon all the circumstances of the case.  The circumstances here include the history of the appellant beginning with his injury in 1998 and the subsequent health problems associated with that.  They include the fact that the claim initially was a valid claim.  They include the fact that the appellant, notwithstanding his injury and other health problems, has undertaken self-employment and accordingly can be regarded as having engaged in a pro-social lifestyle.  He is making repayment of the sum wrongfully claimed.  In these circumstances and given that the appellant has indicated his willingness to accept the conditions of the order, we will quash the sentence of imprisonment and substitute a probation order.  The probation order will be for a period of 12 months and will be subject to the condition that the appellant will undertake 200 hours of unpaid work. 

 

 

 

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