Awosika, R. v

In sentencing an attempted confidence fraud, the court must assess the offender’s record, planning, use of another person’s identity and the need to protect honest traders. Those features may require immediate custody. The sentence must nevertheless remain proportionate to the elementary nature of the attempted fraud, the absence of actual loss, genuine recent reform and timely guilty plea.

A draft sentencing guideline has no statutory force before definitive adoption. A sentencing judge cannot be criticised for failing to take account of a draft published after the sentencing hearing.

The appellant pleaded guilty at the first reasonable opportunity to fraud contrary to section 1 of the Fraud Act 2006. She and a colleague attempted to buy a Rolex watch worth £11,480 using another person’s American Express card and identity documents. The transaction was refused and the shop suffered no loss.

At Maidstone Crown Court, HHJ McDonald QC sentenced her to ten months’ imprisonment. The judge treated her previous deception offences, joint participation and planning as aggravating, while allowing reductions for recent reform and her guilty plea. The appellant appealed against sentence as manifestly excessive, relying in part on a proposed draft guideline.

1. Appeal allowed. The court quashed the ten-month sentence and substituted six months’ imprisonment.
2. An immediate custodial sentence was necessary. The appellant had a substantial record of deception-type offending. The offence involved planning, two participants and the use of another person’s identity. The court also recognised the need to protect honest traders and sustain public confidence in the criminal justice system.
3. The sentencing judge’s starting point of 18 months was, however, too high. Although planned, the offence was an attempt to commit a fairly elementary fraud. There was no loss to the shop. A starting point of 12 months would properly reflect both the appellant’s record and the seriousness of the conduct.
4. Further reductions were required for the appellant’s more recent efforts at reform and for her guilty plea. A reduction to nine months for reform, followed by appropriate credit for the plea, produced a sentence of six months’ imprisonment.
5. The court considered the Sentencing Guidelines Council’s proposal but stressed that it remained a draft guideline. It had not been definitively adopted and had been published after the sentencing hearing. The court therefore determined the proper sentence independently of that proposal.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 625, allowed the appeal against sentence, quashed the ten-month term and substituted six months’ imprisonment.
• Maidstone Crown Court: On 21 January 2009, HHJ McDonald QC sentenced the appellant to ten months’ imprisonment following her guilty plea to fraud.