Attorney General's Reference No 141 of 2004

On a reference for an unduly lenient sentence, a non-custodial sentence may be quashed where it fails to reflect the seriousness of a large-scale and sustained conspiracy to facilitate credit-card fraud. The proper sentencing range must reflect the offender’s culpability, the sophistication and duration of the enterprise, the loss caused and the personal benefit obtained.

When substituting sentence under Criminal Justice Act 1988, the court must also give effect to double jeopardy and take account of punishment already performed, the original non-custodial disposal and material personal mitigation.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Wood Green Crown Court on 1 November 2004.

The offender had pleaded guilty to conspiracy to defraud. He facilitated the creation and use of cloned credit and debit cards over about two years. The conspiracy involved sophisticated equipment and losses of approximately £150,000. The Crown Court imposed a community punishment order of 220 hours.

The central question was whether that non-custodial sentence was unduly lenient and, if so, what substituted sentence properly reflected both the offending and the mitigating features of the reference procedure.

1. The reference succeeded. The court held that the community punishment order was unduly lenient and quashed it. A sentence in the range of two and a half to three years’ imprisonment would have been appropriate in the Crown Court.

2. The offender’s culpability was substantial. Although he was neither the instigator nor the principal organiser, he knowingly made premises available for the cloning operation, held equipment and materials, used cloned cards and passed cards to others for reward. The fraud was large-scale and sophisticated, continued for more than two years, undermined confidence in the banking and credit system, and caused losses of about £150,000.

3. The court nevertheless reduced the substituted sentence to reflect the consequences of intervention on an Attorney General’s reference. It gave weight to double jeopardy, the 87 hours already completed under the community punishment order, the fact that the original sentence had been non-custodial, and the offender’s efforts towards employment.

4. The substituted sentence was 15 months’ imprisonment, to run from the offender’s surrender to custody. He was permitted to surrender at noon on the following day because of his child.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the Crown Court sentence unduly lenient, quashed the community punishment order and substituted 15 months’ imprisonment.

• Wood Green Crown Court: On 1 November 2004, following the offender’s guilty plea to conspiracy to defraud, the court imposed a community punishment order of 220 hours.