Aguilar, R. v

In sentencing for converting criminal property, the assessment of harm under the applicable sentencing guidelines is not confined to the monetary value involved. The court must consider the harm associated with the underlying offending, including its actual effect on victims and third parties, when selecting a starting point within the guideline range.

Loss of employment may aggravate the offending, but it must not be counted twice where it has already informed the assessment of harm. A custodial sentence must be justified by seriousness and be no longer than commensurate with that seriousness. A sentence may remain immediate rather than suspended despite substantial personal mitigation.

R v Aguilar concerned an appeal against sentence. The appellant had pleaded guilty in the Crown Court at Sheffield to converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002. A fraudulent payment of £15,000 had entered an account registered to him; after seeing it, he dishonestly withdrew or transferred most of it.

The Crown Court imposed two years and six months’ imprisonment. The appellant contended that the judge had adopted too high a starting point, failed adequately to reflect mitigation, and should have imposed a suspended sentence. The central issue was the proper guideline sentence, having regard to the value involved, the actual harm caused by the wider fraud, culpability, mitigation and plea credit.

1. Appeal allowed. The court quashed the sentence of two years and six months’ imprisonment and substituted an immediate sentence of thirteen months’ imprisonment.
2. The sentencing guidelines required a broader assessment of harm than the value of the criminal property. Although the £15,000 was towards the bottom of Category 5, the judge was entitled to move upwards within the range because the associated fraud had caused real harm to the complainant company. In particular, the loss of two employees’ jobs was material.
3. The appellant’s role was one of medium culpability, not lesser culpability, although it was not at the most serious end of that category. Taking value, actual harm and culpability together, the proper starting point was about eighteen months’ imprisonment.
4. The employment losses could not be treated again as aggravating features after having been used to assess harm. Material mitigation included the appellant’s age at the offence, good character, health difficulties and delay not attributable to him. The proper sentence after trial was about sixteen months.
5. A 15% reduction properly reflected the late guilty plea and the initially unacceptable basis of plea. The resulting sentence was thirteen months. Although that length permitted consideration of suspension, the seriousness of the offending required immediate custody.

• Court of Appeal (Criminal Division): allowed the sentence appeal in R v Aguilar, [2018] EWCA Crim 2639, quashed the sentence of two years and six months’ imprisonment and substituted thirteen months’ immediate imprisonment.
• Crown Court at Sheffield: following a guilty plea to converting criminal property, imposed two years and six months’ imprisonment on 24 April 2018.