Panta, R v

A victim personal statement may properly inform sentence, including the assessment of aggravating harm. Its weight must nevertheless be proportionate and the sentencing court must act on facts of which it is sure. Such statements may contain untested assertions or personal reactions which, however genuine, do not by themselves justify a substantial increase in the applicable sentencing category.

Where reliance on a victim personal statement produces a marked increase in sentence, the sentencing reasons should explain why the material warrants that effect. A sentence must retain a proper relationship to the loss, culpability and established aggravating features under the applicable guideline.

The appellant pleaded guilty before the magistrates to fraud by false representation contrary to sections 1 and 2 of the Fraud Act 2006. While staying without charge with the victims, he used one victim’s identity and bank details to obtain several short-term loans totalling more than £7,300. He made full admissions when interviewed.

At the Crown Court at Isleworth, the judge imposed 20 months’ imprisonment. Treating the victims’ personal statement as highly aggravating, the judge placed the offence in Category 3A of the Sentencing Council fraud guideline. The appeal concerned whether the statement justified that substantial increase in categorisation and sentence.

1. Appeal allowed. The sentence of 20 months’ imprisonment was quashed and replaced with 12 months’ imprisonment.

2. The applicable harm category was Category 4 because the agreed loss was £7,400, which lay at the lower end of the £5,000 to £20,000 range. There was some planning and an element of abuse of the victims’ hospitality and trust. That was not, however, an abuse of a position of responsibility or fiduciary relationship. The offending also lasted weeks rather than a sustained period.

3. Victim personal statements may be considered in sentencing. Applying the guidance in R v Chall [2019] EWCA Crim 865, the court held that sentencing must be based on facts of which the judge is sure. A statement may include incontrovertible facts, but may also include untested assertions or deeply personal accounts in which harm is unintentionally overstated. If such material is used to justify a substantial increase in sentencing categorisation, the sentencing remarks must explain why it has that effect.

4. The victims’ statement was relevant and their distress was understandable. Its evidential weight nevertheless had to be proportionate. The sentencing judge had not explained why it warranted the steep increase to Category 3A. There was no basis for that categorisation.

5. The proper assessment was Category 4 harm with culpability combining elements of Categories A and B. The appropriate sentence before credit was 18 months’ imprisonment. A full one-third reduction for the guilty plea produced a sentence of 12 months.

6. The court also recorded that the victims were not liable for loans fraudulently obtained in their names. Any lender seeking repayment had to pursue the appellant, rather than the victims, and the judgment could be used to correct credit-rating records based on an assumption that they were debtors.

• Court of Appeal (Criminal Division): Allowed the appellant’s sentence appeal and substituted 12 months’ imprisonment.
• Crown Court at Isleworth: HHJ Simon Davis sentenced the appellant on 1 October 2019 to 20 months’ imprisonment following a guilty plea to fraud by false representation.
• Magistrates’ Court: The appellant pleaded guilty on 20 August 2019.