R v Lee Alexander

In sentencing fraud, the absence of a financial loss does not require the court to begin in the lowest monetary harm category. The court must assess actual, intended or risk loss and then consider victim impact. Serious non-financial harm may justify a higher harm category.

Sentencing guidelines guide the exercise but do not impose rigid categories. The sentencer must take realistic account of all relevant features. On an appeal against sentence, the question is whether the sentence was wrong in principle or manifestly excessive.

The appellant pleaded guilty in the Crown Court at Oxford to fraud contrary to section 1 of the Fraud Act 2006. A blackmail count was not pursued. His basis of plea accepted the facts underlying the blackmail allegation.

By false online identities and a fictitious modelling agency, he induced an 18-year-old victim to send intimate images. He later threatened to distribute them unless she sent further images. The sentencing judge imposed two years and nine months’ imprisonment and a restraining order.

The appellant challenged the starting point, the treatment of mitigation, and the overall length of the sentence. The central issue was the proper guideline categorisation of fraud causing grave non-financial harm.

1. Appeal dismissed. The sentence was neither wrong in principle nor manifestly excessive.

2. The fraud guideline required an initial assessment of actual, intended or risk loss, followed by consideration of victim impact under Harm B. Victim impact could justify movement within a category or into the category above. The absence of a monetary loss did not automatically place this offence in Category 5.

3. The victim’s grave non-financial harm was central. Repeated fraudulent representations obtained intimate images, including nude images showing her face. The court held that the harm could properly equate the offence with Category 3 or Category 4. Under the applicable table, Category 3 had a starting point of three years and a range of 18 months to four years; the top of Category 4 was three years.

4. R v Falder [2018] EWCA Crim 2514 was a substantially more serious case, but it provided a useful comparison because it included similar frauds used to obtain nude images by deception. The present offending was aggravated by sustained deception, threats, intimidation, and false accounts given to the police. The appellant’s youth and limited personal mitigation did not require a lower sentence.

5. Guidelines are not rigid tramlines. The sentencing judge had to assess the particular offence realistically. The sentence imposed was within the range properly open to the judge, and the court therefore dismissed the appeal.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1868, dismissed the appeal against sentence.
• Crown Court at Oxford: On 6 May 2022, imposed two years and nine months’ imprisonment for fraud and made a restraining order.