R v Flore & Anor

A sentencing court may include a local-deterrence element only where proper evidence establishes that the relevant offence is particularly prevalent in that locality. A judge’s experience, anecdotal impression or general sentiment cannot justify an assumption that local prevalence exceeds the national position. In the absence of such evidence, the sentence must be assessed by reference to the applicable national guidance without a deterrent uplift for supposed local endemicity.

The appellants pleaded guilty to possessing articles for use in fraud, contrary to section 6(1) of the Fraud Act 2006. Police found a compromised gift card, suspected PIN numbers and equipment capable of facilitating card fraud in their possession or vehicle.

The sentencing judge imposed 12 months’ detention on Flore and 10 months’ detention on Bura. Both appealed on the ground that their sentences were manifestly excessive under the Definitive Guideline for Fraud and Related Statutory Offences. The central issue was whether the judge could increase the sentences for local deterrence because he regarded this form of fraud as endemic in London.

1. The appeals were allowed. The court substituted 10 months’ detention for Flore’s 12-month sentence and eight months’ detention for Bura’s 10-month sentence.

2. The sentencing judge was entitled to treat both appellants as having a similar level of culpability. They were acting together, possessed sophisticated paraphernalia, and had sought to minimise their involvement. Flore’s previous similar conviction was a significant aggravating feature. The offences properly fell above the lower category in the guideline. A judge need not accept the prosecution’s proposed guideline category, although it is desirable to explain any departure from the parties’ shared analysis.

3. The judge nevertheless erred by adding a deterrent element because he regarded this type of fraud as endemic in London. Applying R v Oosthuizen [2005] EWCA Crim 1978, a court may impose such a sentence only on proper evidence, such as statistics or other evidence of particular local prevalence. A judge’s local experience cannot support an assumption that the offence is more prevalent locally than nationally.

4. No evidence supported the asserted prevalence in London. The deterrent uplift was therefore impermissible, and the sentences had to be reset without it.

• Court of Appeal (Criminal Division) — allowed both sentence appeals and substituted reduced terms of detention.
• Sentencing court — following guilty pleas to possession of articles for use in fraud contrary to section 6(1) of the Fraud Act 2006, imposed 12 months’ detention on Flore and 10 months’ detention on Bura.