Man who defrauded Dundee City Council has sentence reduced on appeal

Mark Conway’s case was referred to the Scottish Criminal Cases Review Commission in August 2019. The SCCRC referred the sentence on the basis that there was evidence that Dundee City Council had recovered sums equal to the value of the fraud.

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull.

Gambling debts

The appellant was employed as an IT officer for Dundee City Council between 1986 and 2016. He was regarded as the council’s primary specialist in financial systems and had unrestricted access to the custom financial computer system it used to pay suppliers.

In 2009 the appellant fell into debt as a result of online gambling. In August of the same year, he entered a payment into the system of almost £18,000 for a fuel supplier used by the council but entered the payment details of his own building society account instead of the supplier’s. At the sentencing diet, the judge was told that his initial aim had been to pay back the money using future gambling winnings that never materialised.

The level of the appellant’s gambling resulted in websites identifying him as a “VIP” player, and he was routinely incentivised to continue gambling. Further fraudulent payment entries were made up until May 2016. When the scheme was identified, an investigation revealed that the appellant had set up a total of 57 payments to accounts he owned that totalled £1,065,085.32. Of this, £7,337.58 was returned at the time of the investigation.

In his application to the SCCRC the appellant included an extract of the Dundee City Council Scrutiny Committee Report into his conduct dated December 2017. That report revealed that the council had recovered a sum in excess of £1 million by the end of 2017, and details of a fidelity guarantee insurance policy providing cover against dishonest employees that the council was required to have.

Dundee City Council advised the SCCRC that it had recovered £335,923 from their insurers and £258,966 from the appellant’s pension. Additionally, an ex-gratia payment had been received from William Hill Bookmakers for £500,000. An investigation into William Hill had discovered systemic failings with its methods of preventing money laundering and limiting harm to problem gamblers.

The SCCRC considered that had the information that the monies had been recovered been available at the time of sentencing it would have had a material bearing on the sentence selected. It also considered that the original sentence of 8 years’ imprisonment, which was discounted by the appellant’s guilty plea, may have been outside the range of sentences the judge at first instance could reasonably have considered based on previous unreported cases.

Stood out as high

The opinion of the court was delivered by Lord Turnbull. Noting that case law consistently indicated that repayment would be a relevant factor at sentence, he said: “Repayment of, or towards, financial loss incurred through an accused person’s dishonesty may be a factor which a sentencer can take into account in determining the appropriate disposal. What effect, if any, to give to evidence of repayment will depend upon the particular facts and circumstances of the individual case.”

He continued: “The court does not consider that it would be correct to proceed on the basis that, in the end, Dundee City Council suffered only a very small or no loss. This would be to ignore the fact that this result was only brought about as a consequence of payments made from other sources. There is no reason at all to view the payment of almost £336,000 from the council’s insurance company as a factor in mitigation of the appellant’s sentence. To do so would be to ignore that this loss to a commercial enterprise was a direct consequence of the appellant’s offending.”

The effect of the William Hill payment was then considered. Lord Turnbull said of this: “Had they done what was required of them they might have ceased to engage in betting transactions with the appellant. Whether that would have brought his offending to an end or not seems entirely speculative and perhaps unlikely. Equally, the fact that the company was in breach of a social responsibility requirement to the appellant in failing to check the extent of his gambling is something which only has a tenuous connection with the fact that he was embezzling money from his employers.”

He continued: “Assuming at best for the appellant that the fact of the payment by William Hill can be viewed as a mitigating factor, the weight that properly can be attached to it is limited. In particular, it would be wrong for a sentencer to engage in a form of arithmetical exercise through which the custodial sentence to be imposed became shorter by way of correlation with the increasing amount of money recouped by the victim.”

Having decided that the sentencing judge’s approach was correct, the court said of the length of the sentence: “Despite the limitations of the information available, the picture which emerges reasonably clearly from [the unreported cases] involving similar conduct to that engaged in by the appellant, is that the sentence selected in his case stands out as being high.”

Lord Turnbull concluded: “Taking a broad view of the facts of the comparable cases relied upon, a sentence of 6 years imprisonment would seem to the court to be the appropriate sentence in the appellant’s case.”

For these reasons, the appellant’s original sentence was quashed. A new sentence of 6 years’ imprisonment was substituted, which was reduced by one third to 4 years in recognition of the early guilty plea.