Mum of six who fraudulently claimed £55,000 in benefits loses appeal against custodial sentence

It was argued by RA, who pled guilty to fraudulently receiving the credits between May 2012 and January 2018, that the circumstances in which she committed the offence ought to have resulted in an alternative to custody being the more appropriate disposal.

The appeal was heard by Lord Pentland and Lord Matthews. The appellant was represented by Collins, solicitor advocate, and the Crown by Jessop, solicitor advocate.

Abusive ex-partner

The appellant had certified that she was a single parent living with her children at an address in East Lothian, when she had in fact been living with a partner in full-time employment. At the sentencing diet, it was explained that she was the primary carer for six children, that the father of the eldest child was deceased, and that her now ex-partner had been abusive towards her, had been dependent on alcohol, and had failed to provide for her and her children financially.

A criminal justice social work report prepared on the appellant explained that she was unlikely to ever pay back the full amount defrauded but was at a low risk of reoffending. Whilst fit to carry out unpaid work, the appellant would only be able to do this if suitable childcare arrangements could be made. The appellant’s current partner, who was also the father of her youngest child, had indicated he would be able to care for all the children in the event of a custodial sentence being imposed.

The sentencing sheriff, having regard to the guideline case of Gill v Thomson (2010), determined that only a custodial sentence was appropriate given that the appellant had pled guilty to a serious offence involving deliberate benefit fraud over a long period of time. She imposed a headline sentence of 18 months’ imprisonment, reduced to 12 by the plea discount.

In selecting the sentence the sheriff acknowledged that while the appellant’s family circumstances were compelling they did not persuade her that, where she would retain her tenancy and where her new partner could care for the children whilst she was in custody, the circumstances could be said to be sufficiently exceptional to justify an alternative to custody.

It was submitted for the appellant that, while the court was entitled to consider a custodial sentence, the circumstances surrounding the commission of the offence, which she claimed was to support the family in circumstances where her partner failed to provide financially for her by instead spending money intended for the family on alcohol, mitigated the high value of the fraud.

Counsel for the appellant further submitted that the appellant was concerned for the welfare of the children should a custodial sentence be imposed, with her current partner having made an application for an interdict preventing her former partner from removing them, and esto a custodial sentence was appropriate, the headline sentence of 18 months’ imprisonment was excessive.

Prolonged course of dishonesty

The opinion of the court was delivered by Lord Pentland. Explaining the sentencing guidelines established by Gill v Thomson, he said: “There can be no doubt that, in view of the large sum defrauded by the appellant, a custodial sentence would normally be required in terms of the guidelines approved in Gill v Thomson. The circumstances would have to be truly exceptional to justify the imposition of a non-custodial penalty in a case where such a large sum of state benefits had been fraudulently obtained.”

He continued: “Having given close consideration to all the circumstances of the present case, we are unable to say that a non-custodial disposal would be appropriate. The appellant deliberately defrauded the state of a very large amount of benefits over many years. She was well aware that she was not entitled to these benefits. Yet she persisted in a prolonged course of conscious dishonesty.”

Addressing the possible mitigating factors presented by the appellant, he said: “We acknowledge the various difficulties that the appellant faced with her former partner, but we do not consider that these were sufficient to justify fraud on such a substantial and sustained scale. As the Sheriff aptly observed, it is important to ensure consistency and predictability in sentencing in cases of this type.”

Turning to the length of the custodial sentence, Lord Pentland said: “The Sheriff took full account of the appellant’s personal and family circumstances. She noted that the appellant would retain her tenancy and that her current partner could care for the children. The Sheriff selected a headline sentence which, in our view, properly reflected the appellant’s particular circumstances, including her various difficulties and the challenges she has faced. We can find no fault in the approach that the Sheriff adopted or with the headline sentence she selected.”

For these reasons, the appeal was refused.