Stone, R. v

A victim surcharge order is an order made when dealing with an offender and therefore falls within the statutory meaning of a sentence. An unlawfully made order may be appealed and quashed.

For offences all committed between 1 April 2007 and 30 September 2012, the Criminal Justice Act 2003 (Surcharge) (No 2) Order 2007 required a victim surcharge only where the sentence included a fine. A surcharge imposed without that condition is unlawful. Sentencing guidelines should be applied proportionately, but the court must also assess the overall seriousness and aggravating features of the offending.

The applicant pleaded guilty in the Crown Court at Wolverhampton to benefit-fraud offences contrary to section 111 A(1)(a) and (b) of the Social Security Administration Act 1992. The fraud, committed jointly with his partner between August 2008 and June 2012, produced benefit payments totalling £21,834.55.

He received concurrent sentences of 12 months’ imprisonment and a £100 victim surcharge. He sought leave to appeal against sentence on the grounds that the starting point, credit for guilty pleas and treatment of personal mitigation were excessive. The court also considered whether the victim surcharge was lawful and whether it had jurisdiction to quash it.

1. Appeal allowed in part. The court rejected the challenge to the 12-month custodial sentence. It allowed the appeal only to quash the £100 victim surcharge order.
2. The sentencing guideline was to be applied proportionately where the loss differed from the amount underlying its stated starting point. That did not make the loss figure determinative. The judge was entitled to assess the overall seriousness of offending which was both prolonged and multiple, involved repeated changes of address, forged and false documents, and determined attempts to avoid detection. A 15-month starting point was therefore not wrong.
3. A 20 per cent reduction for guilty pleas was justified. Acceptable pleas were tendered only on the trial date, after the prosecution had prepared evidence to prove that the applicant and his partner formed one household. His personal mitigation did not make the sentence manifestly excessive.
4. A victim surcharge is an order made when dealing with an offender. It falls within section 50(1) of the Criminal Appeal Act 1968, which defines sentence, and an unlawfully made surcharge may be appealed.
5. The offences fell within the period governed by the Criminal Justice Act 2003 (Surcharge) (No 2) Order 2007. Under Article 3, paragraph 2, a victim surcharge was payable only if the sentence included a fine. No fine was imposed. The £100 order was consequently unlawful and had to be quashed.
6. The court additionally stated that it could not impose an omitted surcharge on appeal where doing so would increase the overall penalty. It gave procedural guidance for applications in which an unlawful surcharge is the sole ground of appeal.

• Court of Appeal (Criminal Division): Allowed the appeal only to quash the unlawful victim surcharge order. The challenge to the custodial sentence was rejected.
• Crown Court at Wolverhampton: The applicant pleaded guilty to benefit-fraud offences and, on 30 January 2013, received concurrent terms of 12 months’ imprisonment and a £100 victim surcharge order.