Wellicome, R. v

Where reliable medical evidence shows that imprisonment has significantly worsened a progressive illness and makes custody substantially more onerous for an offender than for a healthy prisoner, the sentence must reflect that additional burden. A substantial fraud involving sustained abuse of a senior position of trust may justify a high custodial starting point. However, proper credit for a guilty plea and an adequate allowance for severe ill health may require a materially lower sentence.

The appellant pleaded guilty at Lewes Crown Court to conspiracy to defraud at common law. He had used his senior role as an insurance claims manager, with his co-accused, to authorise fraudulent motor-insurance payments over about three years. The fraud involved approximately £276,000 attributable to the appellant.

He was sentenced to three years’ imprisonment. On appeal, he challenged the sentence as excessive, relying principally on Parkinson’s disease and associated cognitive and physical difficulties which made custody particularly onerous. He also relied on disparity with his co-accused and the asserted excessiveness of the starting point.

1. Appeal allowed as to sentence. The Court substituted a sentence of two years’ imprisonment for the three-year sentence imposed below.
2. The offending was serious. It involved a prolonged and sophisticated fraud, substantial loss, false accounting, greed, and a grave breach of trust. The appellant was the more senior participant, had recruited and corrupted his co-accused, was involved in a larger sum, and was properly regarded as the prime mover and driving force. A starting point of about six years’ imprisonment was therefore open to the sentencing judge, even if at the upper end of the range.
3. There was no improper disparity with the co-accused. Their differing sentences reflected the appellant’s greater responsibility and seniority, and the co-accused’s earlier guilty plea and willingness to give evidence against him.
4. The decisive matter was the appellant’s health. The evidence available after sentence confirmed that his progressive neurological illness had deteriorated in custody. It caused periods of immobility, involuntary movements, impaired self-care and communication, anxiety, social isolation, and loss of access to prior physiotherapy. Imprisonment was consequently considerably more onerous for him than for a healthy prisoner.
5. Had that later material been available at sentencing, a greater reduction for ill health would and should have been made. Allowing for the early guilty plea and the significantly aggravated effect of custody on his condition, two years’ imprisonment was the appropriate sentence.

• Court of Appeal (Criminal Division): sentence appeal allowed; the three-year sentence was substituted with two years’ imprisonment.
• Lewes Crown Court: following a guilty plea to conspiracy to defraud at common law, the appellant was sentenced on 30 March 2009 to three years’ imprisonment.