Darwin & Anor, R. v

In sentencing serious fraud, the court must assess both culpability and all harm caused, intended or foreseeably caused. Under section 143 of the Criminal Justice Act 2003, the victims are not confined to those who suffer financial loss. Foreseeable emotional harm to people deliberately deceived as part of the scheme, and their innocent use to further it, may substantially aggravate sentence. On a sentencing appeal, the court will not interfere merely because a lower starting point was available. It must decide whether the sentence imposed was manifestly excessive.

The applicants planned and carried out a prolonged fraud by faking John Darwin’s death at sea. They obtained about £250,000 from insurance and pension arrangements, laundered the proceeds, and maintained the deception for years. Their adult sons were led to believe that their father had died and were later innocently used in transactions connected with the proceeds.

At the Crown Court at Teesside, John Darwin pleaded guilty and Anne Darwin was convicted after her defence of marital coercion failed. They received concurrent sentences of 75 and 78 months’ imprisonment respectively. They appealed on the ground that the sentences were excessive, principally because the judge gave undue weight to the impact of the fraud on their sons.

1. The appeals were dismissed. The concurrent sentences of 75 months for John Darwin and 78 months for Anne Darwin were not manifestly excessive.
2. The court applied section 143 of the Criminal Justice Act 2003. Sentencing seriousness depends on culpability and on harm caused, intended or which might foreseeably have been caused. In a fraud case, protection is not confined to the organisations that suffer financial loss.
3. The applicants’ sons were direct human victims of the dishonest scheme. For the fraud to succeed, they had to be deceived into believing that their father had died and to undergo the consequent grief and distress. They were then innocently used as instruments in laundering the proceeds. Those foreseeable consequences were distinct and significant aggravating features. The needless deployment of rescue services also aggravated the offending, though on a lesser scale.
4. A son’s later wish that his suffering should not lengthen the sentences did not alter that assessment. Sentencing is not an exercise in private revenge which ceases because a victim has forgiven an offender or does not seek punishment.
5. The fraud was sustained, sophisticated and designed to obtain all available payments following the fabricated death. It ended through the disruption caused to the applicants’ lives, rather than remorse. Although the trial judge could permissibly have selected a slightly lower starting point, the appellate question was whether the eventual sentences were manifestly excessive. They were not. The difference between the sentences fairly reflected relative culpability and John Darwin’s guilty plea.

• Court of Appeal (Criminal Division). The court dismissed both appeals against sentence: [2009] EWCA Crim 860.
• Crown Court at Teesside. Wilkie J sentenced John Darwin after guilty pleas and Anne Darwin after conviction by a jury.