Sentence – Imprisonment – Appeal against sentence – Defendant being convicted of fraud after making false personal injury claim in bogus RTA

R v McKenzie [2013] EWCA Crim 1544 Court of Appeal, Criminal Division (Davis LJ, Keith and Lewis JJ (judgment delivered extempore)): 21 August 2013

The defendant and two co-accused, MD and AR, lodged motor insurance claims in relation to a road traffic accident they said occurred in January 2009. AR was said to have been driving his Range Rover and MD was said to have been driving his Volvo when he lost control and drove into MD. The defendant claimed to be a passenger of MD’s Volvo at the time. The insurance claim amounted to nearly £33,000 in total and included personal injury whiplash claims by the defendant and AR.

As part of his claim, the defendant was seen by doctors on three occasions: March 2009, November 2009 and November 2010. The insurance claim was found to be fraudulent. The defendant and co-accused were charged with fraud. They all pleaded not guilty. Following trial, the defendant and co-accused were convicted.

The defendant had previous convictions for: (i) driving a motor vehicle while intoxicated; (ii) shoplifting; and (iii) going equipped to burgle. At sentencing, the judge treated the defendant as being rehabilitated. The defendant had worked for the same employer for 12 years and they provided a good reference. His employers described him as a family man devoted to his wife and three sons. The defendant’s wife suffered from bipolar disorder and the judge acknowledged the devastating impact the defendant’s case had had on his wife. The trial had taken many weeks to conclude because the matter involved complex investigations, it involved a large number of people (70) and was linked with a large number of related cases, namely 25, including the main conspiracy. The judge did not distinguish AR from the defendant. They were each sentenced to 15 months’ imprisonment. MD was sentenced to two years’ imprisonment. The judge also ordered the defendant to contribute toward the prosecution costs in the sum of £3242. The defendant appealed against sentence and the costs order.

He contended that: (i) the starting point was too high resulting in a sentence that was manifestly excessive; and (ii) the costs order was inappropriate in the defendant’s financial circumstances where he had no assets and his employment situation was not at all settled. In respect of (i), the defendant submitted that the offence ought to be classified as a single fraud offence with respect to the relevant sentencing guidelines where the starting point was 20 weeks’ imprisonment, with a sentencing range of six weeks to 12 months. Consideration was given to section 142(1) of the Criminal Justice Act 2003 (the act).

The court ruled: (1) The defendant’s classification of the offence was questionable. It might be difficult to ‘shoe horn’ the offence into one sentencing category or another. However, it was important to note that the judge had to have had in mind that the sentence would have a deterrent effect pursuant to section 142(1) of the act. The approach of the judge could not be faulted. The judge had been justified in taking the starting point in excess of 15 months and discounting it by reason of the defendant’s personal mitigation and the long time it had taken to hear the case.

The appeal against sentence would be dismissed.

R v Liddle [2013] EWCA Crim 603 considered.

(2) An order that a defendant should pay towards prosecution costs could only be made if the defendant had the means and capability to pay.

In the present case, it had not looked like the judge had been provided with the means of the defendant. Furthermore, it was not known whether the defendant’s employer had left his job open for him. In fact, the court had been told that the defendant’s job had been left open for him, although there was a question as to how long his job would remain as there had been a downturn in the employer’s work due to the defendant’s involvement in the present case. The sum ordered to be paid was quite a large sum of money especially considering that the defendant’s family had been deprived of his income whilst he was in prison. Although the defendant had the means to pay something, it was not the means to pay £3,242.

The costs order for £3,242 would be quashed and substituted for an order to pay £1,500.

James Walker (instructed by Abbey Solicitors, Manchester) for the defendant; Simon Heptonstall (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.