Atkinson, R. v

Guideline sentencing brackets for serious fraud are guides, not inflexible limits. In assessing sentence, the court must consider the scale and duration of the dishonesty, the offender’s role, the number of victims, financial loss and personal harm caused. Multiple offences or victims may justify consecutive terms, but the aggregate sentence must comply with the totality principle. A sentence following a guilty plea must reflect the proper credit for that plea and should not be out of step with the general level of sentencing for comparable fraud.

The appellant pleaded guilty at Bradford Crown Court to offences including obtaining money transfers by deception, fraudulent trading, fraud by false representation and theft. Most of the offending concerned a Ponsi scheme in which later investments funded purported returns to earlier investors. The appellant obtained about £400,000 to £500,000 and investors lost about £700,000; some lost life savings, became bankrupt or had to sell their homes.

He received a total of 12 years’ imprisonment, including full credit for his early guilty pleas. The Court of Appeal considered whether that sentence, equivalent to a notional 18-year sentence after trial, was excessive when measured against the applicable fraud guideline and the totality principle.

1. Appeal allowed. The total sentence of 12 years’ imprisonment was quashed and replaced by a total sentence of six years’ imprisonment, subject to the existing 14-day direction under Criminal Justice Act 2003.

2. The sentencing judge had not identified individual starting points or referred to the relevant guideline authority, R v Clarke [1998] 2 Cr App R(S) 137. In a case of this magnitude, and involving substantial loss to many victims, the absence of that explanation was particularly unfortunate.

3. The notional 18-year sentence after trial was seriously out of step with the general level of sentence for this type of fraud. Clarke identified a five-to-nine-year starting range after contested proceedings for frauds involving £250,000 to £1 million, although those brackets were guidelines only.

4. The scheme was substantial and prolonged. The appellant was its sole architect, gained about £400,000 to £500,000, and caused losses of about £700,000 with grave consequences for small investors. Those features justified a seven-year sentence after trial for the scheme offences. One-third credit for the guilty pleas reduced that component to about five years.

5. The separate dishonesty against the appellant’s family was mean and warranted consecutive sentences totalling one year. However, totality had to be respected. The resulting total was therefore six years. The Court substituted individual sentences and directions to give effect to that total.

• Court of Appeal (Criminal Division): allowed the sentence appeal, quashed the sentences imposed by Bradford Crown Court and substituted a total sentence of six years’ imprisonment.
• Bradford Crown Court: on 20 February 2009 imposed a total sentence of 12 years’ imprisonment following guilty pleas.