Practice and Procedure


PUBLISHED July 16, 2003

A sentence of 15 months suspended for two years was unduly lenient for an offence of conspiracy to defraud. A sentence of 18 months imprisonment would be substituted even though H had already served a previous sentence of four years' imprisonment on charges relating to the same conspiracy.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a sentence of 15 months suspended for two years and disqualification from being a company director for 12 years following a conviction of conspiracy to defraud, imposed by HH Judge Roberts QC at the Central Criminal Court in April 2003. The defendant ('H') was chairman and chief executive officer of the Facia Group and through his control of that company he procured payment for his own purposes. Facia Group was invoiced for ?2.6 million worth of work, the accounts showing payment to Chase Montagu Ltd. In June 1996 administrative receivers were called in and Facia Group collapsed owing over £50 million to unsecured creditors. In January 2001 H was convicted of conspiracy to defraud and making corrupt gifts. He was sentenced to five years' imprisonment which, on appeal in October 2001, was reduced to four years' imprisonment. H was released on parole on 23 January 2001. The indictment for the present offence related to the same group of companies but the conspiracy was designed to enrich H personally. It was accepted that not all the payments were dishonest but that H had benefited in the region of £1.75 million. The money was used to re-style his home, and to buy an executive aircraft and motor vehicles. H pleaded guilty, following an indication of sentence from the judge. When passing sentence the judge referred to the duties owed by directors to the public. He held that in all but the most exceptional cases a custodial sentence was inevitable. The starting point was three years following trial, however, if both indictments had been heard together a sentence of seven years would have been excessive and six years was appropriate. This meant that two years was appropriate for the present offence. That would be further discounted for a guilty plea to 15 months. Additional factors had to be taken into account, such as the fact that H had already served a term for dishonesty and it would be an unjustified disruption to send him back to prison. The Attorney-General referred the sentence as unduly lenient given the following aggravating factors: (i) H was the chairman and chief executive officer; (ii) he acted together with the finance director; and (iii) the benefit of £1.75 million had all been spent. In mitigation was: (i) the plea of guilty, (ii) H's age of 53, (iii) the business was legitimate at the outset and (iv) he had served a previous term of four years. H contended that although the starting point of three years was low it was justified. There had been over seven years of litigation, both civil and criminal.HELD: (1) The starting point of three years following trial was too low. In R v Clarke (1992) 2 CAR (S) 95, a sentence of ten years was imposed after trial. Clearly the judge was right to give credit for a guilty plea and to consider the totality but the sentence could not be less than a further three to four years. (2) The cumulative effect of the collapse, which adversely affected H, was a common feature in cases of this type and resulted in civil and criminal liabilities. The criminal sentence should not be reduced as a consequence. (3) The sentence was unduly lenient and whilst the consequences of double jeopardy were stark a further term was merited. The sentence would be quashed and one of 18 months' imprisonment would be substituted.Leave to refer granted, application allowed.