Clark, R. v

Where a sentencing judge correctly applies the applicable guideline, including its assessment of harm and vulnerability, and imposes a sentence within the resulting range, a challenge alleging manifest excess will disclose no arguable merit merely by disputing the weight given to aggravating and mitigating features.

The applicant pleaded guilty in the Crown Court at Kingston upon Thames to fraud against an elderly, physically and mentally frail relative whose finances he had assumed responsibility for. Over three years he exhausted about £300,000 of her resources, left care charges unpaid, and incurred further debt in her name.

The Recorder treated the victim’s particular vulnerability and the abuse of her trust as moving harm from Category 2 to Category 1 under the applicable guideline. After allowing a 10 per cent discount for the late guilty plea, the Recorder imposed 70 months’ imprisonment.

The applicant renewed applications for a six-day extension of time, leave to appeal against sentence, and a representation order following refusal by a single judge. The central issue was whether the sentence was manifestly excessive or insufficiently reflected mitigation.

1. The renewed application was refused. The court held that none of the proposed grounds disclosed arguable merit.
2. The Recorder was entitled to treat the victim as particularly vulnerable. She was physically and mentally frail, depended on paid carers, and had entrusted the applicant with her finances. The applicant exploited that position when she was unable to protect her own interests.
3. The Recorder correctly applied the applicable sentencing guideline by moving the harm assessment from Category 2 to Category 1. The resulting starting point was seven years’ imprisonment, within a range of five to eight years.
4. The Recorder had also taken account of the applicant’s lack of previous convictions and mild mental health problems. The notional post-trial sentence of 78 months, reduced by 10 per cent for the late plea to 70 months, was plainly within the applicable range.
5. The complaints that the vulnerability factors were double counted, that the victim’s circumstances reduced the impact of the fraud, and that further mitigation should have been allowed did not establish that the sentence was manifestly excessive. The applications for an extension of time, leave to appeal and a representation order were therefore refused.

• Court of Appeal (Criminal Division): By judgment [2018] EWCA Crim 481, refused the renewed applications for an extension of time, leave to appeal against sentence, and a representation order.
• Crown Court at Kingston upon Thames: On 19 July 2017, following a guilty plea to fraud, imposed 70 months’ imprisonment.