Graham & Ors, R. v

The Stewart sentencing guidance for benefit fraud remains applicable. Its monetary threshold should be adjusted for inflation: where custody is necessary, a contested fraud involving less than £20,000 will usually justify no more than about nine to 12 months’ imprisonment. Deterrence may properly form part of sentence in suitable cases. Aggravation and mitigation remain highly fact-sensitive.

A court sentencing on specimen or sample counts may not increase sentence by treating unadmitted and uncharged similar offending as proved. The sentence must reflect the offences admitted, proved, or properly taken into consideration.

Two appellants challenged sentences for benefit fraud. Albert Whatley was convicted on 13 counts and sentenced to 30 months’ imprisonment. The prosecution alleged that he had obtained more than £90,000, but the counts totalled about £3,100. Cheryl Graham pleaded guilty to ten offences, asked for 471 further offences to be taken into consideration, and received concurrent sentences of 30 months’ imprisonment.

The appeals required the court to reconsider the continuing effect of Stewart (1987) Cr App R(S) 135, including inflation and deterrence, and to decide the proper sentencing approach to specimen counts.

1. Both appeals were allowed. The court held that the Stewart guidance remained sound. The £10,000 figure should, however, be updated for inflation. Where immediate custody is necessary, a contested benefit-fraud case involving an overpayment below £20,000 will usually justify a short custodial term of about nine to 12 months.
2. The court retained the aggravating and mitigating features identified in Stewart. Relevant aggravation includes the amount obtained, persistence, a claim fraudulent from its inception, sophistication, false or multiple identities, and an extravagant lifestyle. A deterrent element may be justified because benefit fraud is easy to commit, difficult to detect and prevalent. The guidance does not require a general increase in sentence levels.
3. Applying R v Canavan, Kidd and Shaw [1998] 1 Cr App R(S) 79 and Clark [1996] 2 Cr App R(S) 351, a sentencing court cannot sentence an offender for similar uncharged offending merely because specimen counts may be representative. It may take account only of conduct admitted, proved, or properly taken into consideration. The practical difficulty for prosecutors in multiple-fraud cases did not permit departure from that principle.
4. Whatley’s offences crossed the custody threshold, but the judge wrongly sentenced him by reference to the alleged £90,000 total. He stood to be sentenced for about £3,100. Concurrent sentences of 12 months’ imprisonment were substituted. Graham’s prolonged fraud, amounting to about £59,000 and fraudulent from the outset, justified custody despite substantial mitigation and early guilty pleas. Concurrent sentences of 18 months’ imprisonment were substituted.

• Court of Appeal (Criminal Division) Allowed both sentence appeals and substituted reduced concurrent custodial sentences.
• Crown Court Whatley was convicted on 25 March 2004 of 13 benefit-fraud counts and sentenced to 30 months’ imprisonment. The court name and citation are not stated in the judgment.
• Stratford Magistrates’ Court / Crown Court at Snaresbrook Graham pleaded guilty to ten offences at Stratford Magistrates’ Court, was committed to Snaresbrook for sentence, and received concurrent sentences of 30 months’ imprisonment on 20 April 2004.