Attorney General's Reference Nos 59, 60, 61 of 2004

For an Attorney General’s reference under Criminal Justice Act 1988, a sentence is not complete while confiscation and compensation remain to be decided. An application made before that process concludes is therefore in time. Serious, prolonged fraud involving a professional breach of trust, substantial loss, personal gain and a leading role requires a sentence reflecting its full gravity.

However, a finding that a sentence is unduly lenient does not compel intervention. The appellate court must consider double jeopardy and may, in exceptional personal circumstances, temper justice with mercy by leaving suspended sentences undisturbed.

The Attorney General referred the sentences imposed on Guy Pound, Anthony Green and Peter Beard following their convictions for conspiracy to defraud the Talbot Village Trust. The conspiracy concerned excessive professional fees and payments for building work not carried out. Pound was the architect and dominant participant. Green and Beard were quantity surveyors who participated at different stages.

Green and Beard each received nine months’ imprisonment suspended for two years. Pound received three years’ imprisonment. Compensation and confiscation issues were adjourned and later determined. The offenders contended that the Attorney General’s applications were out of time because they followed the initial custodial sentences.

The central issues were whether the references were timely and whether each sentence was unduly lenient.

1. The references succeeded only in relation to Pound. His three-year sentence was quashed and replaced with six years’ imprisonment. The court did not interfere with the suspended sentences imposed on Green and Beard.

2. The references were made in time. Under section 50 of the Criminal Appeal Act 1968, sentence extends beyond the decision whether to impose custody or a community penalty. It includes confiscation, and a compensation order is also a sentence for these purposes. As compensation and confiscation had been adjourned, the sentencing process for each offender was incomplete when the Attorney General applied. The court added that a complaint about the absence or inadequacy of custody should normally be made promptly, without awaiting the remaining sentencing orders; the Attorney General may later reconsider or discontinue the reference in light of them.

3. The court accepted that the guideline decisions in Barrick [1985] 7 CAR 142 and Clark [1998] 2 CAR (S) 95 promote consistency in fraud sentencing while preserving an individualised assessment. Pound had organised and persisted in a major fraud for about 11 years, made a massive personal profit, corrupted a trusted adviser, and enlisted others. His age, health and previous honest work for the Trust did not reduce the gravity of the dishonest conduct. A three-year term was far too lenient, even after allowing for double jeopardy.

4. Green’s and Beard’s sentences were lenient and, on their face, unduly so. The court doubted whether suspension was justified. Nevertheless, their subordinate roles, age and health, professional disgrace, the severe financial consequences of compensation and costs orders, and the effect on their families justified mercy. Taking double jeopardy into account, their suspended sentences remained unchanged.

The proceedings were references by the Attorney General under section 36 of the Criminal Justice Act 1988, rather than conventional appeals.

• Court of Appeal (Criminal Division). The court increased Pound’s sentence to six years’ imprisonment and declined to alter the sentences imposed on Green and Beard.
• Crown Court at Winchester and Southampton. Green and Beard were each sentenced to nine months’ imprisonment suspended for two years. Pound was sentenced to three years’ imprisonment. Compensation and confiscation were adjourned and subsequently ordered.