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Fraud by abuse of position

Date Produced: 23 October 2009

Title: Fraud

Offence: Fraud by abuse of position

Legislation: S4 Fraud Act 2006

Commencement Date: 15/1/07

Mode of Trial: Either Way

Statutory Limitations & Maximum Penalty: 10 years imprisonment

Sentencing Range: New offence - likely to be variable - see s1 Theft Act and obtaining offences.

Aggravating & Mitigating Factors

  • The amount involved
  • The use to which money was put (spending on luxuries more venal than on necessities)
  • Breach of position trust, such as by employee, director or trustee
  • Elderly or vulnerable victim
  • Extent of loss - Intended and Actual
  • Extent of gain - Intended and Actual
  • The period over which and the persistence with which the fraud was carried out
  • Guilty plea
  • Voluntary repayments
  • Personal factors such as illness, disabilitiy, family difficulties, etc

Relevant sentencing Guidelines

Confidence Fraud

Sentencing Guidelines Council Definitive Guidelines

Convicted on or after 26 Oct 2009

Fraud/False Accounting

First time offender aged 18 or over who pleaded not guilty

Large advanced fee fraud or deliberate targeting of a large number of vulnerable victims

£500K (SP £750K) - Start Point (SP): 6 years. Range: 5-8 years

£100k - £500K (SP £300K) - Start Point (SP): 5 years. Range: 4-7 years

£200K -£100K (SP £60K) - Start Point (SP): 4 years. Range: 3-6 years

<£20K (SP £10K) - Start Point (SP): 3 years. Range: 2-5 years

Lower advance fee fraud or degree of planning and / or multiple transactions

£500K (SP £750K) - Start Point (SP):  5 years. Range: 4-7 years

£100k - £500K (SP £300K) - Start Point (SP): 4 years. Range: 3-6 years

£200K -£100K (SP £60K) - Start Point (SP): 3 years. Range: 2-5 years

<£20K (SP £10K) - Start Point (SP): 18 months. Range: 26w-3 years

Single transaction involving targeting of a vulnerable vcitim

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP): 26 weeks. Range: CO (High) -18months

<£20K (SP £10K) - Start Point (SP): 6 weeks. Range: 2-5 years

Single transaction not involving targeting of a vulnerable victim, no or limited planning

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP): 26 weeks. Range: CO(Medium)-36 weeks

<£20K (SP £10K) - Start Point (SP): CO (Medium). Range: Fine -6 weeks.

Additional Aggravating Features
  • Number involved in the offence and role of the offender
  • Offending carried out over a significant period of time
  • Use of another person's identity
  • Offence has a lasting effect on the victim.
Additional Mitigating Factors
  • Peripheral involvement
  • Behaviour not fraudulent from the outset
  • Misleading or inaccurate advice

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Banking and Insurance Fraud and Obtaining Credit through Fraud

Sentencing Guidelines Coucil Definitve Guidelines

Convicted on or after 26 Oct 2009

Fraudulent from the outset, professionally planned and either carried out over a significant period or multiple frauds

£500K (SP £750K) - Start Point (SP): 5 years. Range: 4-7 years

£100k - £500K (SP £300K) - Start Point (SP): 4 years. Range: 3-5 years.

£200K -£100K (SP £60K) - Start Point (SP): 2 years. Range: 18m-3 years.

£5K-£20K (SP £20K)

Less £5K

Fraudulent from the outset, and either fraud carried out over a significant period of time or multiple frauds

£500K (SP £750K) - Start Point (SP): 4 years. Range: 3-7 years.

£100k - £500K (SP £300K) - Start Point (SP): 3 years. Range: 2-4 years.

£200K -£100K (SP £60K) - Start Point (SP): 15 months. Range: 18m-3 years.

£5K-£20K (SP £20K) - Start Point (SP): 12 weeks. Range: CO (High)-12 months.

Less £5K - Start Point (SP): CO (High). Range: CO (Low)-6 weeks.

Not Fraudulent from the outset, and either fraud carried out over a significant period of time or multiple frauds

£500K (SP £750K) - Start Point (SP): 3 years. Range: 2-6 years.

£100k - £500K (SP £300K) - Start Point (SP): 2 years. Range: 12m-3 years.

£200K -£100K (SP £60K) - Start Point (SP): 36 weeks. Range: 12w-18 months.

£5K-£20K (SP £20K) - Start Point (SP): 6 weeks. Range: CO (Med)-26 weeks.

Less £5K - Start Point (SP): CO (Med). Range: Fine-CO(High)

Single fraudulent transaction fraudulent from the outset

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP):26 weeks. Range: 6w-12 months.

£5K-£20K (SP £20K) - Start Point (SP):CO (High). Range: Fine-18 weeks.

Less £5K - Start Point (SP): CO (Low). Range: Fine-CO (Med)

Single fraudulent transaction not fraudulent from the outset

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP): 12 weeks. Range: CO (Med)-36 weeks.

£5K-£20K (SP £20K) - Start Point (SP): CO (Med). Range: Fine-6 weeks.

Less £5K - Start Point (SP): Fine. Range: Fine-CO (Low)

Additional Aggravating Features
  • Number involved in the offence and role of the offender
  • Use of another person's identity
Additional Mitigating Factors
  • Peripheral involvement
  • Misleading or inaccurate advice

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Benefit Fraud

Sentencing Guidelines Council Definitive Guidelines

Convicted on or after 26 Oct 2009

Fraudulent from the outset, professionally planned and either carried out over a significant period or multiple frauds

£500K (SP £750K) - Start Point (SP): 5 years. Range: 4-7 years.

£100k - £500K (SP £300K) - Start Point (SP): 4 years. Range: 3-5 years.

£200K -£100K (SP £60K) - Start Point (SP): 2 years.  Range: 18m-3 years.

£5K-£20K (SP £20K)

Less £5K

Fraudulent from the outset, and either fraud carried out over a significant period of time or multiple frauds

£500K (SP £750K) - Start Point (SP): 4 years. Range: 3-7 years.

£100k - £500K (SP £300K) - Start Point (SP): 3 years. Range: 2-4 years.

£200K -£100K (SP £60K) - Start Point (SP): 15 months.  Range: 18m-3 years.

£5K-£20K (SP £20K) - Start Point (SP): 12 weeks. Range: CO(High) - 12 months.

Less £5K - Start Point(SP): CO (High). Range: CO (Low)-6 weeks


Not Fraudulent from the outset, and either fraud carried out over a significant period of time or multiple frauds

£500K (SP £750K) - Start Point (SP): 3 years. Range: 2-6 years.

£100k - £500K (SP £300K) - Start Point (SP): 2 years. Range: 12m-3 years.

£200K -£100K (SP £60K) - Start Point (SP): 36 weeks.  Range: 12w-18 months.

£5K-£20K (SP £20K) - Start Point (SP): 6 weeks. Range: CO(Med) - 26 weeks.

Less £5K - Start Point(SP): CO (Med). Range: Fine-CO (High).

Single fraudulent transaction fraudulent from the outset

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP): 26 weeks.  Range: 6w-12 months.

£5K-£20K (SP £20K) - Start Point (SP): CO (High). Range: Fine - 18 weeks.

Less £5K - Start Point(SP): CO (Low). Range: Fine-CO (Med).

Single fraudulent transaction, not fraudulent from the outset

£500K (SP £750K)

£100k - £500K (SP £300K)

£200K -£100K (SP £60K) - Start Point (SP): 12 weeks.  Range: CO (Med)-36 weeks

£5K-£20K (SP £20K) - Start Point (SP): CO (Med). Range: Fine - 6 weeks.

Less £5K - Start Point(SP): Fine. Range: Fine-CO (Low).

Additional Aggravating Features
  • Number involved in the offence and role of the offender
  • Use of another person's identity
Additional Mitigating Factors
  • Peripheral involvement
  • Misleading or inaccurate advice

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Guideline Breach of Trust Case

Sentencing Guidelines Council - Definitive Guidelines. Theft and Burglary in a building other than a dwelling. Offences sentenced after 05/01/09.

First time offender aged 18 or over who pleaded not guilty.

Type: Less than £2000
Starting Point: community Order (Medium)
Range: Fine - 26 Weeks

Type:  £2000 -£20,000 or less than £2,000 High Degree Trust
Starting Point:  18 weeks
Range: Community Order - 12 months

Type: £20,000 - £125,000 or less than £20,000 High Degree Trust
Starting Point: 2 years
Range: 12 months - 3 years

Type: £125,000 plus or £20,000 plus high Degree Trust
Starting Point: 3 years
Range: 2 years - 6 years

R v CLARK [1998] 2 Cr.App.R. (S.) 95
Save in very exceptional circumstances, where a person in a position of trust, for example an accountant, a solicitor, a bank employee or a postman has used his trusted and privileged position to defraud his partners, clients employers or the general public of sizeable sums of money immediate imprisonment is inevitable unless there are exceptional circumstances or the amount of money involved is very small. The amount defrauded is an important factor and the following guidelines apply where the sums involved are:

  • Less than £17,500 up to 21 months imprisonment
  • £17,500 to £100,000 2-3 years
  • £100,000 to £250,000 3-4 years
  • £250,000 to £1 million 5-9 years
  • £1 million or more 10 years +

R v KEFFORD (MARK JAMES) [2002] 2 Cr. App. R. (S.) 106
For economic crimes, alternative sentences to imprisonment could be appropriate punishment.

K was employed by a building society and opened false accounts into which he made windfall payments and then withdrew money as needed. The amount of £11,120 was taken. When interviewed the appellant immediately made full and frank confessions. He had no previous convictions. After the discovery of the offences the appellant sold his home so as to be able to repay the sums he had taken. Convicted of theft and false accounting. On appeal his sentence was reduced from 12 months imprisonment to 4 months. The court commented that even in the present circumstances, in cases involving breach of trust where the sum involved was not small, the guidance in Clarke was still applicable even where it was a first offence, however, a sentence of imprisonment should only be imposed when necessary and only for as long as was necessary in view of the overcrowded prison system. For economic crimes, especially where the offender was of previous good character, alternative sentences to imprisonment could be appropriate punishment.

(Guideline Mortgage Fraud  Case)
STEVENS AND OTHERS (1993) 14 Cr. App. R.(S) 372

In this case, 19 appellants had made 128 mortgage applications in relation to 90 properties. A total of £1.8 million had been obtained over eight years, and £2.5 million worth of further attempts had been made.

The Court of Appeal held that the following should be considered when sentencing for mortgage fraud:

  • Whether false names and values were used
  • Whether properties and borrowers were invented
  • It is an aggravating feature to recruit others to participate in the fraud
  • Whether loans for commercial properties were obtained at domestic rates
  • The part played by the offender; whether he was a professional man or not (breach of trust)
  • Period over which the fraud was persisted in
  • Personal benefits derived from the fraud
  • Delay between the acts ending and the arrest; between arrest and plea; the nature and timing of the plea is important when there has been a delay
  • Character and age of offender

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Relevant Sentencing Case Law

Refer to the cases listed under Theft and Obtaining.

ROACH [2002] 1 Cr. App. R.(S) 43
Breach of trust by carer

It was held that the Clark guidelines were restricted to acts of theft or deception committed in breach of trust from employers, charities etc and were not applicable to a case where the offender, a carer looking after an elderly woman, had received signed, blank cheques from the woman and cashed them for herself, thereby obtaining £2,875. This qualification to the Clark guidelines has subsequently been confirmed in Hooper [2003] 2 Cr. App. R.(S) 96.

Ancillary Orders

(Archbold paragraph references in brackets)

i) Compensation Orders/Restitution (5-411)

ii) Deprivation Orders (5-439)

iii) Disqualification from acting as a Company Director (5-851)

iv) Financial Reporting Orders (5-886c)

Consider Also: Confiscation, SOPO

 

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