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Fraud by False Representation

Date Produced: January 2012
Title: Theft
Offence: Fraud by False Representation
Legislation: S2 Fraud Act 2006
Commencement Date: 15/1/07
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 10 years imprisonment

Aggravating and Mitigating Factors (From Sentencing Guidelines Council Definitive Guideline)

STEP ONE:  Assess the culpability of the offender

Factors indicating higher culpability

  • Planning of an offence
  • An intention to commit more serious harm than actually resulted from the offence
  • Offenders operating in groups or gangs
  • 'Professional offending'
  • High level of profit from the offence
  • An attempt to conceal or dispose of evidence
  • Deliberate targeting of vulnerable victim(s)
  • Abuse of a position of trust

Factors indicating significantly lower culpability

  • Mental illness or disability
  • Youth or age, where it affects the responsibility of the individual defendant
  • The fact that the offender played only a minor role in the offence

STEP TWO: Assess the harm caused by the offending:

Factors indicating a more than usually serious degree of harm

  • Multiple victims
  • Victim is particularly vulnerable
  • High value (including sentimental value) of property to the victim, or substantial consequential loss
The Council has identified four particular factors which may aggravate culpability and harm:
  1. Number involved in the offence and role of offender  eg if offender was an organiser, planner or prime mover in a fraudulent enterprise carried out by a number of individuals.
  2. Offending carried out over a significant period of time
  3. Use of another person's identity  Using the identity of a living person is likely to cause emotional distress and practical difficulties of untangling the financial consequences of the fraud.  Using the identity of a deceased person is likely to indicate a higher degree of planning (as it can be an attempt to make the fraud more difficult to uncover) and is likely to cause considerable distress to the relatives of the deceased, especially if that person has only recently died.
  4. Offence has a lasting effect on the victim  eg loss of most or all of their savings, being unable to make mortgage and loan repayments, or have to work beyond retirement age.
The Council has identified four personal mitigating factors that are relevant to this type of offending:
  1. Voluntary cessation of offending, especially where accompanied by a genuine expression of remorse.
    This may depend upon the time that has elapsed since the commission of the last offence and the reasons why an offender stopped offending.  Where it was because of a heightened fear of discovery or the fact that the additional funds were no longer needed, a court may conclude that the degree of mitigation is negligible or that this factor should not be taken into account at all.
  2. Complete and unprompted disclosure of the extent of the fraud.  This amounts to ready co-operation with the authorities, which the Council has recognised as offender mitigation.  The point at which the disclosure is made and the degree of assistance given to the authorities, should determine the amount of mitigation.
  3. Voluntary restitution.  The point at which an offender voluntarily returns property or money obtained through fraud will be important and, the earlier it is returned the greater the degree of mitigation the offender should receive.
  4. Financial pressure.  Whilst many are motivated by greed or a desire to live beyond legitimate means, others may be motivated by financial pressure. In principle, financial pressure is a factor that neither increases nor diminishes an offenders culpability in relation to any type of dishonesty offence, including fraud.  However, where financial pressure is exceptional and not of the offender's own making, it may in very rare circumstances constitute offender mitigation.

Relevant sentencing Guidelines

Sentencing Guidelines Council Definitive Guideline- effective when convicted after 26 Oct 2009

Confidence Fraud

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

Start Point (SP): 6 years. Range: 5 - 8 years 

Start Point (SP): 5 years. Range: 4 - 7 years 

Start Point (SP): 4 years. Range: 3 - 6 years 

Start Point (SP): 3 years. Range: 2 - 5 years

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

Start Point (SP): 5 years. Range: 4 - 7 years 

Start Point (SP): 4 years. Range: 3 - 6 years 

Start Point (SP): 3 years. Range: 2 - 5 years 

Start Point (SP): 18 months. Range: 26 weeks - 3 years

Single transaction involving targeting of a vulnerable victim   

Start Point (SP): 26 weeks. Range: CO (High) - 18 months 

Start Point (SP): 6 weeks. Range: 2 - 5 years

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

Start Point (SP): 26 weeks. Range: CO (Medium) - 36 weeks 

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.

Banking and Insurance Fraud and Obtaining Credit through Fraud

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

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

Start Point (SP): 5 years. Range: 4 - 7 years 

Start Point (SP): 4 years. Range: 3 - 5 years 

Start Point (SP): 2 years. Range: 18 months - 3 years  

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

Start Point (SP): 4 years. Range: 3 - 7 years 

Start Point (SP): 3 years. Range: 2 - 4 years 

Start Point (SP): 15 months. Range: 18 months - 3 years 

Start Point (SP): 12 weeks. Range: CO (High) - 12 months 

Start Point (SP): CO (High). Range: CO (Low) - 6 weeks

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

Start Point (SP): 3 years. Range: 2 - 6 years 

Start Point (SP): 2 years. Range: 12 months - 3 years 

Start Point (SP): 36 weeks. Range: 12w - 18 months 

Start Point (SP): 6 weeks. Range: CO (Med) - 26 weeks 

Start Point (SP): CO (Med). Range: Fine - CO (High)

Single transaction fraudulent from the outset   

Start Point (SP): 26 weeks. Range: 6 weeks - 12 months 

Start Point (SP): CO (High). Range: Fine - 18 weeks 

Start Point (SP): CO (Low). Range: Fine - CO (Med)

Single fraudulent transaction not fraudulent from the outset   

Start Point (SP): 12 weeks. Range: CO (Med) - 36 weeks 

Start Point (SP): CO (Med). Range: Fine -6 weeks 

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.

Benefit Fraud

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

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

Start Point (SP): 5 years. Range: 4 - 7 years 

Start Point (SP): 4 years. Range: 3 - 5 years 

Start Point (SP): 2 years. Range: 18 months - 3 years  

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

Start Point (SP): 4 years. Range: 3 - 7 years 

Start Point (SP): 3 years. Range: 2 - 4 years 

Start Point (SP): 15 months. Range: 18 months - 3 years 

Start Point (SP): 12 weeks. Range: CO (High) - 12 months 

Start Point (SP): CO (High). Range: CO (Low) - 6 weeks

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

Start Point (SP): 3 years. Range: 2 - 6 years 

Start Point (SP): 2 years. Range: 12 months - 3 years 

Start Point (SP): 36 weeks. Range: 12w - 18 months 

Start Point (SP): 6 weeks. Range: CO (Med) - 26 weeks 

Start Point (SP): CO (Med). Range: Fine - CO (High)

Single transaction fraudulent from the outset   

Start Point (SP): 26 weeks. Range: 6 weeks - 12 months 

Start Point (SP): CO (High). Range: Fine - 18 weeks 

Start Point (SP): CO (Low). Range: Fine - CO (Med)

Single fraudulent transaction not fraudulent from the outset   

Start Point (SP): 12 weeks. Range: CO (Med) - 36 weeks 

Start Point (SP): CO (Med). Range: Fine -6 weeks 

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.

The SGC Guideline has removed a number of cases from it Compendium of Guideline cases, which should therefore not be referred to, including:

  • R v CLARK [1998] 2 Cr.App.R. (S.) 95 (theft in breach of trust)
  • R v STEWART AND OTHERS 85 Cr.App.R 66  (fraudulently obtaining benefit)
  • R v STEVENS 96 Cr App R 303 (mortgage fraud)

Relevant sentencing Guidelines (If any)

The Court of Appeal has stated that non financial loss caused to others could be taken into account as an aggravating factor and may result in a sentence outside of the guideline, NB this would be exceptional see R v Darwin and Darwin [2009] 2 Cr App R (S) 15, emotional distress caused to adult children of man and wife who faked man's death for life assurance claim.

This reasoning followed in case of a fraudulent will-maker who tricked a number of clients into parting with £5,000.  The Court of Appeal upheld a sentence of 14 months saying:

"The fraud committed by the appellant was a particularly pernicious one because he was preying upon customers or clients in the later stages of life... obviously concerned ... that their dependants and descendants should be provided for in a fair and proper way. In our view, this was a particularly unpleasant form of breach of trust, the character of which the judge rightly had in mind.  We do not see force in the proposition that is a small amount of money. These sums were taken from many elderly clients. It is by no means clear that these clients were of affluent means or comfortable circumstances. The money which they paid out as a result of the fear caused by the appellant's letters may well not have been small sums to them."  R v VENTRIGLIA [2011] EWCA Crim 2912.

Relevant Sentencing Case Law

Refer also in appropriate cases to guidelines under THEFT and OBTAINING

Ancillary Orders

  • Compensation
  • Confiscation
  • POCA
  • Forfeiture orders
  • Financial reporting orders

Consider Also:

Careful pleading of values in charging, especially where the amount may be difficult to determine

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