Yates, R v

Sentencing for mortgage fraud must reflect the applicable definitive guideline and the particular circumstances of the offending. Relevant matters may include the number and nature of transactions, breach of trust, the method of deception, the sum obtained, actual loss, participation by others, and any intention and means of repayment.

An asserted intention to repay and an absence of actual loss may mitigate seriousness, but their weight can be reduced where repayment depended on criminal activity, the absence of loss was fortuitous, or the fraud involved forged supporting documents and others. The total sentence must satisfy totality.

The appellant was convicted at Maidstone Crown Court of conspiracy to supply a Class B drug. He had also pleaded guilty to possessing criminal property and obtaining a money transfer by deception.

For the deception offence, he obtained an £807,500 mortgage advance by falsely declaring his and his partner’s income and providing forged payslips and a forged bank statement. The loan was used to buy the family home. There had not then been a loss to the lender.

The Crown Court imposed two years and six months’ imprisonment for that offence, consecutive to the sentence for the drugs conspiracy. The appellant challenged only that consecutive term as excessive.

1. Appeal dismissed. The sentence of two years and six months’ imprisonment for obtaining the money transfer by deception was one which the judge could properly impose. The resulting total of nine years’ imprisonment was amply justified for the overall offending.

2. The court accepted that an intention to repay the mortgage, so that the family could remain in the property, was relevant. It could not, however, carry the weight contended for because the legitimate income disclosed by the evidence was plainly inadequate to meet the mortgage liabilities. The proper inference was that repayment was expected to depend principally on criminal activity.

3. The absence of actual loss to the lender was also relevant, but was partly fortuitous. A very substantial loan had been dishonestly obtained at a high proportion of the purchase price. A fall in property values and the uncertainty of illicit repayment funds made loss foreseeable.

4. The forged income evidence, and the appellant’s involvement of his partner in the fraud, were further aggravating features. Although a four-year starting point was severe, the judge had made a substantial totality reduction before giving full credit for the guilty plea.

5. The court observed that earlier mortgage-fraud authorities pre-dated the modern sentencing framework. Subject to the Definitive Guideline, sentencing requires a fact-sensitive assessment of the potentially relevant features, including the number and method of transactions, actual loss, involvement of others, and the intention and anticipated means of repayment. R v Steven (1993) 14 Cr App R(S) 372 was noted as helpfully identifying relevant factors.

• Court of Appeal (Criminal Division): Dismissed the appeal against the consecutive sentence imposed for obtaining a money transfer by deception.

• Crown Court at Maidstone: The appellant was convicted of conspiracy to supply a Class B drug and had pleaded guilty to the dishonesty offences. He received an overall sentence of nine years’ imprisonment.