REGINA v GARY STEVEN BLAKE

When applying a sentencing guideline, a loss materially below the figure associated with the guideline starting point should ordinarily attract a lower starting point, although no mathematically proportionate reduction is required.

A feature already used to establish higher culpability cannot be counted again as aggravation. Significant mitigation may include good character, health, delay, caring responsibilities, the fact that dishonesty arose after legitimate activity, and pandemic impact. Family consequences and Article 8 interests must be considered when suspension is sought, but may not outweigh serious offending and the public interest in punishment.

Following a six-week trial at Salisbury Crown Court, the appellant was convicted of two counts of fraud contrary to section 1 of the Fraud Act 2006. He received concurrent sentences of 2 years 9 months' imprisonment. He appealed against sentence, arguing that the starting point was excessive, that insufficient weight had been given to mitigation, and that the sentence should have been suspended.

The appeal raised the appropriate guideline starting point for a loss assessed at about £40,000, whether the duration of the fraud had been double-counted, and whether the impact of imprisonment on the appellant's wife and family justified suspension.

The appeal was allowed to a limited extent. The sentence was quashed and concurrent sentences of 26 months' imprisonment were substituted on both counts. The sentence was not suspended.

1. The offending fell within category 3A of the relevant Sentencing Council guideline. The guideline starting point of three years related to a loss of £50,000, whereas the judge had assessed the loss at about £40,000. A lower starting point of 32 months was appropriate. The reduction did not need to be mathematically proportionate.
2. There were no aggravating factors under the guideline. The duration of the fraud had already placed the offending in culpability level A. Treating duration as a further aggravating feature would amount to double counting.
3. The court identified substantial mitigation: the appellant's good character and lack of relevant convictions, his physical and mental health, delay not attributable to him, his role as his wife's primary carer, the fact that the fraud followed a period of legitimate care activity, and the impact of the pandemic. Those matters justified a significant reduction to 26 months.
4. When suspension was sought, the court had to consider the effect of imprisonment on the appellant's wife and family and balance it against the seriousness of the offending and the legitimate purposes of sentencing. The court considered the principles relied upon from R v Petherick [2012] EWCA Crim 2214. The wife's serious deterioration and the appellant's caring role were important, but the seriousness of defrauding the public purse meant that suspension was not appropriate.
5. The court also noted that the wife's supervision order under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964 should involve some oversight, and that assistance had not been sought through the general practitioner, social services and probation services.

• Court of Appeal (Criminal Division): the appeal against sentence was allowed to a limited extent. The sentence of 2 years 9 months was quashed and concurrent sentences of 26 months were substituted.
• Crown Court at Salisbury: following conviction on 17 August 2021, the appellant was sentenced on 21 January 2022 to concurrent terms of 2 years 9 months' imprisonment.