Chandrarajah, R. v

Where a sentencing court must determine a defendant’s role in a conspiracy, the categorisation must rest on the evidence. A false account given after a guilty plea may justify caution and suspicion, but it cannot itself establish a more serious role than the evidence demonstrates. Where no Newton hearing is required, the judge may resolve the factual dispute on the papers, but must sentence on the evidentially supported basis.

The appellant pleaded guilty at Basildon Crown Court to conspiracy to defraud. The conspiracy involved tampering with cash machines by using skimming devices and cameras, retaining customers’ cards, and making unauthorised withdrawals.

At sentencing, the judge treated the appellant as a middle-ranking lieutenant and imposed two years’ imprisonment. The appellant contended that the evidence showed only that he acted as a driver on one day. He appealed against sentence with leave, arguing that his role had been overstated.

1. Appeal allowed. The two-year sentence was quashed and replaced by a sentence of 16 months’ imprisonment.

2. There was a factual dispute about whether the appellant was a lieutenant or a driver. As neither party suggested that a Newton hearing was needed, the sentencing judge was required to resolve that dispute on the papers.

3. The evidence placed the appellant with the principal conspirators on 10 and 11 January 2013. His vehicle was used while fraudulent withdrawals and a fuel purchase made with a stolen card occurred. There was, however, no direct evidence that he tampered with an ATM, installed equipment, or played a role in the conspiracy beyond that occasion.

4. The appellant’s account to the probation officer was inconsistent with his guilty plea and was properly rejected. It could make his position suspect, but the judge could not infer from those lies that he had performed a role more serious than the evidence established. The evidence supported sentencing him as a driver, not as a lieutenant.

5. Parity with the other drivers who had pleaded guilty at the same stage required a sentence of 16 months. The court declined to reduce the sentence further by reference to the appellant’s personal circumstances.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted 16 months’ imprisonment: [2015] EWCA Crim 55.
• Crown Court at Basildon: following a guilty plea to conspiracy to defraud, imposed two years’ imprisonment on 7 August 2014.