Foreign student who fraudulently claimed £23,000 for course fees admonished after appeal court quashes custodial sentence 

The Appeal Court of the High Court of Justiciary ruled that, having regard to the “nature and purpose” of the offence, and the “statutory presumption” against custodial sentences for first offenders, a community-based sentence would have been an “appropriate” disposal.

‘Fake visa’

Lord Glennie and Lord Turnbull heard that the appellant, Thandiwe Matikiti, pled guilty to a charge of fraud by pretending that she had been granted indefinite leave to remain in the United Kingdom.

She admitted presenting a fake visa to show that she had indefinite leave to remain, as a result of which she obtained about £23,000 from the Student Awards Agency in Scotland (SAAS) over a period of some three years.

The sheriff sentenced her to a period of imprisonment of 14 months, reduced from a headline sentence of 18 months to take account of her early plea of guilty, backdated to 18 June 2019.

The court was told that the appellant had already served almost half of her sentence and was due to be released this month.

However, notwithstanding her imminent release from custody she was seeking to challenge the sentence imposed because, under the Immigration Rules, a custodial sentence of 12 months over would result in “automatic deportation” after her release.

‘Excessive sentence’

On behalf of the appellant it was submitted that the 18-month headline sentence was “excessive”, although there was no criticism of the level of discount applied by the sheriff.

It was recognised that the amount involved in the fraud might well lead to a custodial sentence but, contrary to what the sheriff appeared to have thought, that was “not inevitable”.

The appellant had no record of previous offending and had never been in custody, and she was therefore “entitled” to the presumption against a custodial sentence in terms of section 204(2) of the Criminal Procedure (Scotland) Act 1995.

Her motive here was not to fund an extravagant lifestyle, but to fund her education so she could embark on a career of nursing in the UK.

It was clear, and this was supported by the comments in the criminal justice social work report, that the appellant recognised the error of her ways and was “full of remorse”.

The court also heard that the appellant had had a “very difficult childhood and adolescence”, her family having had to flee from Zimbabwe, and she herself having been involved in an “abusive marriage” and then having been “exploited” by her aunt, with whom she went to live after escaping from her marriage.

‘Admonished’

The sheriff concluded that that there was “no alternative” to a custodial sentence, but the appeal judges ruled that in reaching that conclusion the sentencing sheriff “fell into error”.

Delivering the opinion of the court, Lord Glennie said: “It should be emphasised that, contrary to what appears to have been the sheriff’s understanding, the case law does not require there to be a custodial sentence in this type of case; and any suggestion based on such case law that such a sentence will usually be appropriate has to be tempered by the presumption that now exists against sentences of less than one year.

“In any event the circumstances in this case are, we think, exceptional, having regard in particular to the nature and purpose of the fraud which was committed to enable her to get funding for worthwhile and necessary training with the view to a career in nursing. Having regard to this and to the statutory presumption in her case against a custodial sentence, we consider that the matter could properly have been dealt with by a community payback order.”

“However,” he added, “it is too late for that disposal now since the appellant has served all but a week of her sentence. Further, for this court simply to reduce the custodial sentence would be artificial; and it would fail to give effect to our view that a custodial sentence was not required and that a community payback order would have been the appropriate course.

“In those circumstances, the appellant having, as we have said, served almost the whole of her sentence, and having in consequence served a punishment significantly more severe than the community disposal which we would have considered appropriate, we propose to allow the appeal, quash the sentence and simply admonish the appellant.”