R v Kelly Jean Bennett

Disparity in sentence succeeds only where the appellant can justifiably feel aggrieved by the difference. Different offending or personal circumstances may explain different outcomes, and a co-offender’s fortuitously lenient sentence provides no basis for complaint. Where immediate custody is unavoidable, its impact on family life under Article 8 may justify reducing the custodial term. The appellate court should also step back and assess whether the aggregate sentence is just and proportionate, having regard to totality, guilty plea credit and separate criminality. A lower sentence imposed on a co-offender does not itself make another sentence manifestly excessive.

Kelly Jean Bennett appealed against a sentence imposed by the Crown Court at Basildon for fraud by false representation and three animal welfare offences. She received four years and one month for the fraud, concurrent shorter sentences for the animal welfare offences, and a lifetime animal prohibition order.

She challenged the allowance made for personal mitigation and her children, disparity with a co-defendant, and the alleged excessiveness of the overall sentence. The disparity ground was withdrawn at the hearing. The central issues were whether the fraud guideline had been applied correctly, whether the sentence properly reflected Article 8 family-life considerations, and whether the aggregate sentence satisfied totality and proportionality.

1. Appeal dismissed. The sentence of four years and one month was just and proportionate in all the circumstances.
2. Disparity is an exceptional ground of sentence appeal. It can succeed only where the appellant can justifiably feel aggrieved by the difference between sentences. Differences in the offending or the offenders’ circumstances may explain different outcomes. An offender cannot complain because a co-offender fortuitously received an unduly lenient sentence. Where sentencing guidelines govern, adherence to the guideline approach substantially removes disparity arguments based only on different outcomes. These principles were drawn from R v Saliuka [2014] EWCA Crim 1907, R v Dyer [2014] EWCA Crim 2114 and R v Hussain (Khalid) [2018] EWCA Crim 290. The co-defendant’s lower sentence reflected the exceptional circumstances of an infant child and the possibility of placement in a mother and baby unit.
3. Where immediate custody is unavoidable, its impact on the fundamental right to respect for family life may call for a reduction in the custodial period. Applying R v Petherick [2012] EWCA Crim 2214, [2013] 1 WLR 1102, the sentencing judge had carefully considered the circumstances of the appellant’s children and had made a fair and reasonable further reduction.
4. The fraud guideline had not been misapplied. Increasing the four-year starting point indicated by culpability and harm to six years was proper in light of the high impact on victims and an aggravating factor. The court then stepped back to review totality. The animal welfare offences could reasonably have been treated as separate and additional criminality. The appellant had also received an unusually favourable 15 per cent reduction for a guilty plea entered during the trial, and later reports further undermined the claim that the sentence was excessive.

1. Court of Appeal (Criminal Division) — dismissed the sentence appeal in [2023] EWCA Crim 739.
2. Crown Court at Basildon — on 14 October 2022, imposed four years and one month for fraud, concurrent sentences for the animal welfare offences, and a lifetime animal prohibition order.