Obtaining a Money Transfer by Deception

Date produced: 6 July 2011
Title: Financial crime
Offence: Obtaining a Money Transfer by Deception
Legislation: s.15A Theft Act 1968 (inserted by s.1(1) Theft (Amendment) Act 1996)
Commencement date: 18.12.1996
Note: Repealed as from 15.1.2007  by the FRAUD ACT 2006 , however under transitional provisions this section  is still applicable to  offences where the offence was partly committed before 15 January 2007 - see section14(2) and schedule 2 of  the Fraud  Act for detailed provisions.
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 10 years imprisonment
Sentencing range: Variable - see s.1Theft cases

Aggravating and 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, disability, family difficulties, etc

Relevant sentencing Guidelines

STEVENS AND OTHERS (1993) 14 CR.APP.R.(S) 372
Guideline Mortgage Fraud Case

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

CLARK [1998] 2 CR.APP.R.(S) 95 (Guideline Case)
Property obtained in breach of trust

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, that person will attract immediate custody.

Such a person, as Clark himself, will hitherto be of impeccable character.

Due to the increasing scale of white-collar dishonesty, such cases warranted longer sentences than originally contemplated in Barrick.

As in Barrick, as well as the amount stolen, the following is to be taken into consideration when sentencing:

• Quality and degree of trust in, and rank of the offender
• Use the money was put to
• Effect on the victim
• Period over which the fraud was persisted in
• Effect on the public and public confidence
• Effect on fellow employees and partners
• Effect on the offender
• Offender's own history
• Personal mitigation

Long delay between discovery of offences and start of trial (2 years or more)
Consecutive sentences may be appropriate where the amount stolen was large, stolen on a number of occasions or taken from more than one victim.

Guidelines

Value of Fraud/Guidelines after contested trail

Significant but less than £17,500  /  Very short custodial to 21 months
£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 or more

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. 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.

ROACH [2001] 2 CR.APP.R. (S) 12
Breach of Trust by carer of vulnerable victim

Following pleas of guilty to 3 counts of obtaining a money transfer by deception, a sentence of 18 months imprisonment was upheld on appeal for the appellant, who had over two years cared for an elderly lady aged 80, and used the opportunity to complete 26 cheques payable to herself, thereby obtaining a total of £2,875. The distinctive feature of this case was that it involved the exploitation of pitifully vulnerable people, whether due to age or infirmity or a combination of both, therefore it was not appropriate to compare it to cases of breach of trust by an employee such as Clark and Barrick.

Relevant Sentencing Case Law

WARD [2005] EWCA CRIM 1972
Prominent Role, Mortgage Broker

6 years imprisonment after conviction was upheld on appeal for the appellant who along with others had perpetrated mortgage frauds, having been convicted of obtaining money transfers by deception. It was held that Ward, a mortgage broker, had played a prominent role, and had been a recruiter, Stevens (1993) 14 Cr.App.R.(S) 372 considered.

HOOPER [2003] 2 CR.APP.R.(S) 96
Vulnerable Victim

3 years upheld on appeal, confirming the diversion of vulnerable victims away from Clark and Barrick guidelines, as in Roach. Here, the appellant had pleaded guilty to 10 counts of obtaining a money transfer by deception and 3 counts of forgery. He had been a financial advisor, but left this employment and operated on his own. He persuaded an elderly couple to invest money which he used for his own or his own company's purposes. A total of £62,500 was obtained.

JENNER [2002] EWCA CRIM 3060
Building Society Manager

J, a former building society facilities manager, appealed against a total sentence of four years' imprisonment following guilty pleas for false accounting and obtaining a money transfer by deception. J contended that the sentence was excessive in view of the decision in R. V KEFFORD (MARK JAMES) [2002] EWCA CRIM 519, that in economic crimes of this nature, imprisonment should only be imposed when necessary and for no longer than necessary. Allowing the appeal, that in light of the decision in Kefford, J's full cooperation which had enabled the building society to recover nearly all its losses of £394,000 and J's excellent prison report, a sentence of three years and six months' imprisonment should be substituted, Kefford followed.

CARTER [2002] EWCA CRIM 2147
False information given by mortgage broker

Two years were reduced on appeal to 12 months following guilty pleas to obtaining a money transfer by deception. The appellant was an independent mortgage adviser and he used that position to make an application for a mortgage advance in the sum of £141,000, giving false information as to the address that he lived, a false landlord's reference and a forged gas bill. As a result he was granted a mortgage advance in the sum sought.

Ancillary Orders

(Archbold paragraph references in brackets ) 

• Compensation Orders: (5-411)
• Deprivation Orders: (5-439)
• Disqualification from acting as a Company Director: (5-851)
• Financial Reporting Orders: (5-886c)

Consider Also 

• Confiscation

Links

 2007 Archbold 21-213 (Omitted from 2011 edition)

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