Mullen & Ors, R. v (Rev 1)

In sentencing for a conspiracy to defraud, the court must assess both the overall gravity of the conspiracy and each offender’s individual role. Sentencing analogies and guideline ranges require caution where a sophisticated fraud repeatedly targets vulnerable victims through sustained pressure.

A sentencing error does not require intervention if the overall sentence remains justified and no injustice has resulted. A financial reporting order under Serious Organised Crime and Police Act 2005 is protective, not punitive. It requires a sufficiently high risk of further stipulated offending, assessed from the offender’s record and the nature and persistence of the offending.

Three offenders sought permission to appeal sentences imposed at the Crown Court at Southwark for separate but related boiler-room conspiracies to defraud investors through false or worthless share sales.

Mullen, a salesman with a lesser and shorter role in one conspiracy, received two-and-a-half years’ imprisonment. Davison, who played the leading role in successive schemes, received a total of seven years’ imprisonment. Bingham, found to be Davison’s right-hand man in one scheme, received five years’ imprisonment. Davison and Bingham were also made subject to 15-year financial reporting orders.

The central issues were whether the custodial sentences were manifestly excessive or wrong in principle, and whether the reporting orders met the statutory risk threshold.

1. Mullen’s appeal was allowed. The court granted leave, quashed his sentence of two-and-a-half years and substituted 24 months’ imprisonment. Although he knowingly participated for about seven months in a serious fraud, his role was substantially less than that of the other applicants. He had joined an operation he initially believed legitimate, left it voluntarily, had relatively good previous character, and was entitled to substantial credit for his guilty plea.

2. Davison’s application was refused. The court held that the total seven-year sentence for successive, professional and persistent frauds was not manifestly excessive. The sentencing judge had erred in treating the count 6 fraud as committed while Davison was on bail for a second time. However, the total sentence and the consecutive sentence for that further fraud remained justified. The error caused no injustice.

3. Bingham’s application was refused. The judge was entitled to regard him as an integral and pivotal participant, operating the United Kingdom end of the fraud, paying apparent dividends and transferring funds to Davison. His serious previous dishonesty convictions were a substantial aggravating feature. His age and ill-health did not make the five-year sentence excessive, since appropriate medical care was available in custody.

4. The financial reporting orders were upheld. Under section 76 of the Serious Organised Crime and Police Act 2005, an order depends on a sufficiently high risk of further stipulated offending. Following Terence Adams [2008] EWCA Crim. 914, its purpose is public protection rather than punishment. Davison’s repeated offending and Bingham’s history of serious dishonesty justified the statutory conclusion and the 15-year duration on the material available.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 606, Mullen’s renewed application succeeded and his sentence was reduced to 24 months. Davison’s and Bingham’s renewed applications against sentence and financial reporting orders were refused.
• Crown Court at Southwark: Mullen and Davison were sentenced on 2 February 2011. Bingham was sentenced on 3 May 2011, following guilty pleas to conspiracy to defraud; Davison and Bingham also received financial reporting orders under the Serious Organised Crime and Police Act 2005.