Obtaining commercial
Date Updated: January 2012
Title: Theft
Offence: Obtaining property by deception - commercial
Legislation: S15 Theft Act 1968
Commencement Date: Repealed as from 15.1.2007 by the FRAUD ACT 2006 , however under transitional provisions this section is still applicable to offences where the offence was partly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 15th 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
Culpability & Harm
- Substantial amounts involved
- Substantial loss sustained
- Planning
- Professionalism
- Entirely fraudelent enterprise
- Target vulnerable victims
- Offending carried out over a long period
- Offender acting with others
- Offender recruited others
- Offender prime mover
- Motivated by greed or desire to live beyond his or her means
Aggravating & Mitigating Factors
None
Relevant Sentencing Guidelines (If Any)
Guideline Breach of Trust Case
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. 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.
Relevant Sentencing Case Law
Commercial:
R v PALMER (NO.2) [2003] 2 Cr.App.R.(S.) 2 (at 5)
Convicted of two counts of conspiring to defraud. Over a period of about eight years the defendant conspired with others to defraud owners of timeshare properties by falsely representing the investment potential of the properties. Confiscation order £33 million. 8 years.
R v ODEWALE AND OTHERS [2004] 2 Cr.App.R.(S.) 47
Convicted conspiracy to defraud. The defendant and others made 140 applications for bank accounts and credit cards using false identities and addresses. Consider the period and extent of each defendant's involvement in this fraud; the sophisticated nature of the fraud and its ambit; the harm and potential harm caused by a fraud of this kind; the extent to which the fraud was successful; the benefit obtained from it, and the defendant's previous dishonesty. Further, there is the need for a deterrent element on the basis that we have described. 6 and a half years.
R v CAREY [1999] 1 Cr.App.R.(S.) 322
Pleaded guilty to conspiracy to defraud. The defendant manufactured and sold satellite decoders. Playing for high stakes. 4 years.
R v FAISAL IQBAL [2004] 1 Cr.App.R.(S.) 45
Pleaded guilty to conspiracy to defraud. The defendant manufactured and sold TV decoders. £15 million loss to TV companies. Extremely sophisticated and dedicated crime, involving a production system that is normally associated with substantial legitimate companies. 5 years.
ATTORNEY GENERAL'S REFERENCE Nos. 57 and 58 of 2003 (Arash Dayadel and Ali Daryadel) [2004] 2 Cr.App.R.(S.) 34
Convicted of conspiring to defraud and fraudulent trading. The offenders established a company which dishonestly sold fake driving documents to asylum seekers. The fraud operated over a period of about 20 months and a sum of not less than £250,000 was obtained. Disqualified from being concerned in the management of a company for five years. 3 years and 21 months. Tariff 4 years and 2 and a half years.
R v DE BEER [1997] 1 Cr.App.R.(S.) 97
Pleaded guilty to six counts of obtaining by deception, one of obtaining services by deception, and three of obtaining credit while an undischarged bankrupt. Over a five year period he defendant obtained £1.3 million loans to purchase non-existent equipment and committed a £500K mortgage fraud. 5 years.
R v CHAMBERLAIN [1992]13 Cr.App.R.(S.) 535
Pleaded guilty to conspiracy to defraud. The defendant submitted invoices from false companies to secure tenders worth £36K. Not prime mover. Disqualified from being a director. 2 years.
R v RICHARDSON AND GEORGE [1993] 14 Cr.App.R.(S.) 654
The defendants adopted various frauds to conceal the plight of a company that went into liquidation. Fraud to keep the company going rather than fraudulent from the outset but loss approached £8 million. 3 and a half and 4 and a half years.
R v PALK AND SMITH [1997] 2 Cr.App.R.(S.) 167
Pleaded guilty to fraudulent trading, and the second defendant also pleaded guilty to being concerned in the management of a company while an undischarged bankrupt. The defendant submitted false accounts to maintain a loan facility. The company went into liquidation with £500K liabilities. Not finance lavish lifestyle. 18 months.
R v DEVOL [1993] 14 Cr.App.R.(S.) 407
Pleaded guilty to six counts of obtaining by deception and two of furnishing false information with a view to gain. The appellant raised finance on plant and machinery which he claimed to own but which did not exist, and factored debts due to him for work which had not been done. Total loss £160K.The defendant ran bona fide companies which were in financial difficulties. The money was reinvested in the companies. Disqualified from being a director. 27 months.
R v MOHAMMED AND HAQ [1993] 14 Cr.App.R.(S.) 245
Convicted of conspiracy to defraud. The defendants ordered clothing on behalf of a company set up by the second defendant. The first cheques presented in payment were met, but larger cheques given against later orders were referred to drawer. The appellants subsequently claimed that clothes worth £84K had been stolen from their warehouse. 2 years.
AG'S REFERENCE No. 86 of 2003 (David Parkinson) [2004] 2 Cr.App.R.(S.) 79
Pleaded guilty to conspiracy to defraud. The defendant worked in a bank and provided details of accounts which were used to obtain £46K. Breach of trust. 16 months. Tariff 2 years.
Fraudulent trading:
R v THOBANI [1998] 1 Cr.App.R.(S.) 227
Pleaded guilty to fraudulent trading. The defendant continued to obtain credit when his business was no longer viable. Loss £79K. Bona fide honest business but deterrent. 9 months.
Clocking cars:
R v OLIVER [1991] 13 Cr.App.R.(S.) 96
Pleaded guilty six offences of obtaining by deception, one of failing to disclose his status as a business seller, two of applying false trade descriptions to goods and one of using a false instrument. The defendant bought a number of motor cars at auction and resold them with the mileage records substantially reduced. On one occasion an altered M.O.T. certificate was provided for a car. 2 and a half years.
R v HAFEEZ AND GIBBS [1998] 1 Cr.App.R.(S.) 276
Pleaded guilty to conspiring to obtain by deception. The defendants worked in a garage and charged for work not carried out or carried out unnecessary work. £10k loss. Conducted a whole substantial business on a deeply dishonest basis. 3 years and 18 months.
Ancillary Orders:
- Compensation Orders: 5-411
- Deprivation Orders: 5-439
- Disqualification from acting as a Company Director: 5-851
- Financial Reporting Orders: 5-886c
Consider Also:
- POCA
