Choudhary & Ano , R. v

A sentence for mortgage fraud will not be manifestly excessive where the offending was professionally planned, sustained over years, involved multiple transactions and very substantial sums, and fell within the applicable Definitive Guideline range. The court must assess actual or likely lender loss, the offender’s intended repayment, the offender’s role and breach of professional trust, and personal mitigation.

Mitigation, including an absence of previous convictions, family hardship, good prison conduct and efforts to maintain mortgage payments, may justify substantial credit. It does not necessarily make a custodial sentence outside the proper range.

The first applicant pleaded guilty to mortgage-fraud offences involving false representations in buy-to-let mortgage applications, and to a benefit-fraud offence. She received concurrent sentences of three years’ imprisonment for the mortgage frauds and nine months’ imprisonment for the benefit fraud.

The second applicant pleaded guilty to mortgage-fraud offences and, on a separate indictment, conspiracy to evade duty on imported cigarettes. He received a total sentence of four years’ imprisonment.

Both applicants renewed applications for permission to appeal against sentence after refusal by a single judge. The central issues were whether the first applicant’s sentence was manifestly excessive and whether the second applicant’s grounds could fairly be resolved without submissions from the prosecution.

1. First applicant. The renewed application for permission to appeal was dismissed. The court held that the concurrent sentence of three years’ imprisonment for the mortgage frauds was not manifestly excessive.

2. The offending was fraudulent from the outset, professionally planned and carried out over several years. The applicant, a qualified mortgage adviser, made false employment representations to obtain buy-to-let mortgages relating to nine properties. More than £1.8 million was advanced to her personally. Her professional position materially aggravated the offending.

3. The court had regard to the potentially relevant sentencing considerations identified in R v Nicholas Yates, [2011] 1 Cr. App. R. (S) 15. Applying the October 2009 Definitive Guideline, it held that the proper post-trial range was four to seven years’ imprisonment, with a starting point of five years. A starting point of four years and six months was at the bottom of that range.

4. The court took account of the applicant’s lack of previous convictions, family circumstances, good conduct in prison and efforts to ensure mortgage payments continued. Those matters, and the sentencing credit for her guilty pleas, had already been reflected in the three-year sentence. The uncertain prospect that lenders might ultimately suffer no loss did not make the sentence excessive.

5. Second applicant. Permission to appeal was granted, but the appeal was adjourned for a further hearing at which the prosecution should attend. Some grounds required the prosecution’s position before they could properly be resolved. The court made no finding that success on those grounds would necessarily reduce the sentence.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 185, the court dismissed the first applicant’s renewed application for permission to appeal against sentence. It granted the second applicant permission to appeal, but adjourned his appeal for a hearing with the prosecution present.

• Single judge of the Court of Appeal. Both applications for permission to appeal against sentence were refused.

• Winchester Crown Court. HHJ Hooton sentenced the first applicant on 7 June 2010. HHJ Burford QC sentenced the second applicant on 29 June 2010.