Hibberd & Anor, R v

For connected counts of conspiracy to defraud, the total sentence must respect the statutory maximum applicable to the offending as a whole. Distinct manifestations of the fraud may nevertheless aggravate its seriousness.

A maximum sentence is reserved for offending of the utmost gravity. In substantial commercial fraud, good character may carry limited mitigating weight where apparent respectability facilitated the fraud. Delay may justify reduction where it is not attributable to the offender. A late guilty plea is discounted only after the proper sentence has been assessed with all aggravating and mitigating factors.

The appellants, directors of Vodka Bar Management Ltd and associated companies, pleaded guilty at Southwark Crown Court to two conspiracies to defraud. They obtained lending from Royal Bank of Scotland and Lombard North Central plc through false representations and forged documents. The lenders lost about £2 million.

Hibberd received four years on count 1 and two years consecutive on count 2. Allen received two and a half years and one year consecutive. Both appealed against sentence. The principal issues were whether aggravating features had been wrongly found, the proper overall approach to consecutive terms, and whether the sentences were wrong in principle or manifestly excessive.

1. Hibberd’s appeal was allowed to a limited extent; Allen’s was dismissed. The sentencing judge wrongly treated as aggravating that Hibberd had corrupted Allen and caused Karen Forrester to become involved. There was also no basis for treating Allen’s lifestyle as aggravating. Hibberd’s sentence therefore required reconsideration.

2. Although the two counts had separate victims, the victims were within the same conglomerate and their officers worked closely together. The maximum total sentence in this case was therefore the 10-year maximum for conspiracy to defraud under section 12(3) of the Criminal Justice Act 1987. The fraud nevertheless had two distinct manifestations, which aggravated its seriousness.

3. The court applied the sentencing approach in Bright [2008] EWCA Crim 462. The statutory maximum is reserved for crimes of the utmost gravity. This was not such a case. Taking account of the prolonged and determined fraud, repeated false representations, forgeries and the large sums involved, a post-trial starting point of about six years was appropriate.

4. For Hibberd, good character and personal mitigation had limited weight. The delay justified a reduction, but his prior business history and the known risk of obtaining finance by deceit and forgery remained aggravating. The proper sentence before credit for plea was about five and a half years. A reduction of about 10 per cent for the very late plea produced a total of five years. Count 2 was reduced to one year consecutive.

5. Allen’s total of three and a half years, despite the error concerning lifestyle, was neither wrong in principle nor manifestly excessive. The judge’s reference to deterrence did not show an impermissible increase for prevalence; it reflected the statutory sentencing purpose of reducing crime by deterrence under section 142(1)(c) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 652, Hibberd’s total sentence was reduced from six to five years. Allen’s appeal against his total sentence of three and a half years was dismissed.
• Southwark Crown Court — On 11 September 2008, following guilty pleas on 23 June 2008, Hibberd was sentenced to four years and two years consecutive; Allen to two and a half years and one year consecutive.