O'Brien, R v

Sentencing guidance for statutory fraud is capable of applying to a continuing conspiracy involving repeated transactions and the deliberate targeting of vulnerable victims. The number and cumulative force of aggravating features may properly raise the offence into a higher guideline category, even where one feature, considered alone, might not do so.

When varying a sentence on appeal, the court must apply totality. It may impose a sentence above the guideline calculation for the principal offence where this is necessary to reflect other concurrent offending for which consecutive sentences could properly have been imposed.

The appellant pleaded guilty in the Crown Court at Birmingham to conspiracy to defraud, affray and failing to provide a specimen of breath. The conspiracy involved the targeting of elderly householders for unnecessary or defective building work at grossly inflated prices. He admitted responsibility for losses just below £100,000 and was the conspiracy's leader.

He received seven years and two months' imprisonment for the conspiracy, with concurrent sentences for the other offences. He appealed against sentence, contending in particular that the sentencing judge had wrongly regarded the Definitive Guidelines for statutory fraud as inapplicable. The issue was the proper guideline assessment and the total sentence.

1. The appeal against sentence was allowed in part. The sentence of seven years and two months for conspiracy to defraud was quashed and replaced by six years' imprisonment. The concurrent sentences and other orders remained in force.

2. The sentencing judge erred in treating the Definitive Guidelines for statutory fraud as unsuitable. A continuing fraud comprising multiple transactions and deliberate targeting of victims fell within the guideline matrix.

3. The offence could properly be treated as falling within the highest level of large-scale advance-fee or other confidence fraud. Although there were four victims rather than a large number, the appellant led a sophisticated conspiracy over more than two years. The victims were vulnerable, the admitted loss approached £100,000, he had relevant previous convictions, and he continued offending while on police bail.

4. The guideline starting point after trial was four years, with a range of three to six years. Given the aggravating features, six years was the proper trial starting point. A 10% reduction for the very late guilty plea produced a sentence of about five and a half years for the conspiracy alone.

5. However, the original judge had indicated that the affray and driving offences could properly have attracted consecutive sentences, but had ordered concurrency as an act of mercy because of the original long conspiracy sentence. Applying totality, a six-year sentence for the conspiracy was required to reflect the entirety of the offending while the other sentences remained concurrent.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence to the extent of substituting six years' imprisonment for the seven-year-and-two-month sentence imposed for conspiracy to defraud.
• Crown Court at Birmingham — imposed seven years and two months' imprisonment for conspiracy to defraud, with concurrent sentences for affray and failing to provide a specimen of breath.