Obtaining general
Date Updated: January 2012
Title: Theft
Offence: Obtaining property by deception - general
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Commencement Date: Repealed as from 15.1.2007 by the FRAUD ACT 2006 , however under transitional provisions this section is still applicable to offences where the offence was partly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
- Relatively substantial loss sustained
- Planning
- Professionalism
- Entirely fraudelent enterprise
- Target vulnerable victims
- Effect upon victim
- 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)
R v CLARK [1998] 2 Cr.App.R.(S.)142 B6-12003 which updated the guidance issued in R v BARRICK [1985] 7 Cr.App.R.(S.)142 B6 - immediate imprisonment is inevitable in breach of trust cases unless there are exceptional circumstances or the amount of money involved is very small.
- Less than £17,500 up 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 +
R v ROACH [2002] 1 CR.AP.R(S) 259
The defendant pleaded guilty to three counts of obtaining a money transfer by deception. The defendant worked for a firm supplying carers to elderly and infirm people. Over a period of about two years cashed cheques to the value of £2,875 from a 80 year old client. 18m. Clark [1998] 2 Cr.App.R.(S.) 95 and Barrick (1985) 7 Cr.App.R.(S.) 142, guidelines were not relevant to offending of the kind under consideration. They related to theft in breach of trust from employers, charitable bodies or similar organisations. 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. The sentence passed could not be said to be manifestly excessive; in the Court's view it was an entirely correct and appropriate sentence.
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
R v STEWART [1997] 1 Cr.App.R.(S.) 71
Pleaded guilty to conspiracy to steal and doing an act tending to pervert the course of justice. The appellant and two other men were concerned in defrauding a lady aged 66 of £13,000 by pretending to make essential repairs to her house. The lady was escorted to her bank and building societies to make cash withdrawals. The appellant produced false alibi evidence and represented himself as her brother for seven months before his identity was discovered. 4 years (+ 3 months)
R v SALATHIEL AND OTHERS [1998] 1 Cr.App.R.(S.) 338
The first defendant was convicted of six offences of obtaining by deception, the second pleaded guilty to six offences and the third to three offences. The applicants obtained sums of money amounting to more than £40,000 over a period of three years from a middle aged man by various false pretences. 5, 4 and 3 years.
R v KERR [1998] 2 Cr.App.R.(S.) 316
Convicted of procuring the execution of a valuable security by deception. The defendant befriended an old lady, asked her to sell her bungalow and when she refused to do so forged a deed of gift. Elements of breach of trust and deceive the Land Registry. 3 years.
R v SPILLMAN AND SPILLMAN [2001] 1 Cr.App.R.(S.) 139 (at 496)
Pleaded guilty and was convicted of conspiracy to defraud. The defendants and impersonated the testator and forged a will with a view to obtaining £1.8 million. Mean, devious, carefully planned and carried out and was very nearly successful. 7 and 5 years.
R v HOOPER [2003] 2 Cr.App.R.(S.) 96 (at 569)
Pleaded guilty to ten counts or obtaining a money transfer by deception, and three counts of forgery. The defendant was a financial adviser and persuaded two elderly people to give him £62K. The second investor's money was used to pay the first. Breach of trust was particularly large as those people had entered into an important fiduciary relationship with the appellant. They entrusted him with substantial sums of money to invest after he had gained their confidence and trust. Targeted the vulnerable to finance an extravagant lifestyle. 3 years.
SEYMOUR [2002] 2 CR.APP.R.(S) 96
Unscrupulous Builder
The appellant was convicted of obtaining property by deception. The appellant operated a company which advertised in the yellow pages. He had quoted roof repair work at £3,000, and agreed that the sum would be payable upon completion. The man and another attended and claimed the money which was paid. It was discovered that no work had been done and contact details provided were false. Sentence of 15 months imprisonment upheld on appeal.
R V CONNORS [2006] 2 Cr. App. R. (S.) 31
Unscrupulous Builder
The appellant was convicted of obtaining by deception. The appellant was one of a group of men who visited a man aged 60 and offered to clear his guttering at a cost of £32.50. They then told the man that the guttering was rotten and would cost £11,000 to repair. The victim was then driven to his bank, were he took £3,150 from his account, which he gave to one of the men. It was later discovered that the repairs to the guttering would have cost about £ 134. Sentence of three-and-a-half years' imprisonment upheld on appeal
R v. MITCHELL [1996] 2 Cr.App.R.(S.) 299
Pleaded guilty to three counts of theft. The appellant persuaded an elderly couple of limited means to invest their redundancy money of £20K in a business venture. Previous for similar. 3 and a half years.
AG'S REFERENCE 48, 49, 50 and 51 of 2002 (Hans Constantin Paulssen and others) [2003] 2 Cr.App.R.(S.) 36
Three of the offenders were convicted of conspiracy to defraud; the fourth pleaded guilty. The defendants set up a bogus investment company. Proceeds were not of the highest and the conspiracy was not the longest. No targeting of small investors. Delay. 3 and a half - 4 years. Tariff 7 years.
R v DUGGAN [1999] 2 Cr.App.R.(S.) 65
Convicted of six offences of procuring the execution of a valuable security. The defendant traded as an accountant, and persuaded an old lady to invest £688K. Defalcations extended over a considerable period and none had been repaid. Total 9 years.
Other:
R v WEBB [1995] 16 Cr.App.R.(S.) 486
Convicted of conspiracy to defraud. The appellant conspired with two members of the staff of a gaming club to cheat. The amount obtained by the fraud could not be ascertained. 2 years.
R v BOOTHE [1999] 1 Cr.App.R.(S.) 98
Pleaded guilty to attempting to obtain property by deception and having a false instrument with intent to defraud. The appellant was concerned in an advanced fee fraud and obtained over $200K. 2 and a half years.
R v MOKOENA [2004] 2 Cr.App.R.(S.) 83
Pleaded guilty to conspiracy to defraud. The defendants claimed to be involved in a mine in Africa, falsely valued two gems and obtained a deposit of £9K. Good character but carefully planned. 18 months.
R v DEKSON [2005] 1 Cr.App.R.(S.) 114
Convicted of conspiracy to defraud or obtaining services by deception and having a false instrument. The appellant was concerned in an advanced fee fraud. The defendants obtained £1.7 million through a Nigerian advance fee fraud. "We think that this category of case is a special category of case made so by its very prevalence. It involved, as the judge said also, a high degree of skill, psychological insight and organisation using, as the present instances show, numbers of other people over quite considerable periods of time. We think that a deterrent element has some role to play in sentencing in relation to this type of offence." 6 years + 18 months. Total 8 and a half years.
Charity:
R v PIPPARD AND HARRIS [2002] 2 Cr.App.R.(S.) 40 (at 166); [2001] EWCA Crim. 2925
Convicted of conspiring to obtain property by deception. The defendants set up a bogus charity, recruited street collectors and created false badges and literature. 2 years.
R v DAY AND O'LEARY [2002] 2 Cr.App.R.(S.) 92 (at 421); [2002] EWCA Crim. 503
Pleaded guilty to three counts of conspiracy to defraud.. The defendant set up a false charity. . Funds were raised on behalf of a young boy suffering from a heart condition whose story had been reported in the local newspaper. The defendants collected money (£10K -£30K) on behalf of the boy, but kept the proceeds for themselves. Calculated dishonesty from the outset that exploited public goodwill and in some cases private grief. This was a serious breach of private and public trust. 4 years.
Goods not supplied:
R v CLUGSTON [2005] 1 Cr.App.R.(S.) 30
Pleaded guilty to eight charges of obtaining property by deception. The defendant sold £26K champagne to various commercial outlets which was not delivered. Lengthy record. 4 years.
Credit cards:
R v CHIRILA AND OTHERS [2005] 1 Cr.App.R.(S.) 93
Pleaded guilty to conspiracy to defraud. The defendant installed a small wireless camera above the keyboard of the cash machine so as to acquire the PIN numbers from the cards. £24K obtained from 55 customers. A strong deterrent element must be incorporated into these sentences. This is the sort of fraud which has the effect of undermining the confidence of the public in the electronic banking system. 6 years.
AG'S REFERENCE No. 141 of 2004 (Kenneth Kince Thomas) [2005] 2 Cr.App.R.(S.) 94
Pleaded guilty to conspiracy to defraud. The defendant and others obtained £150K over 2 years by cloning credit cards. Community penalty increased 15 months. Tariff 2 and a half years.
R v MUNDLE [1997] 2 Cr.App.R.(S.) 130
Pleaded guilty to two charges of obtaining by deception and committed for sentence. The defendant was a prostitute, approached a tourist and offered sex for £20 and a further £870 as a returnable deposit, and was told to go to a hotel. The following day the defendant asked the tourist to pay a further £480 for the return of his deposit. The defendant had numerous previous convictions for similar offences. 12 months.
R v ARAGON [1995] 16 Cr.App.R.(S.) 930
Convicted of six counts of obtaining by deception. The defendant was employed part-time as an Immigration Appeal Adjudicator and obtained £10K payment for work which he had not performed. 6 months.
Taxi Bilking:
R v FOSTER [1994] 15 Cr.App.R.(S.) 340
Convicted of four counts of making off without payment. The appellant on four occasions engaged taxis to take him on trips resulting in fares between £37 and £63, and disappeared without paying. Numerous previous convictions for dishonesty. Committed quite deliberately as part of planned expeditions, involving dishonesty, bringing loss and inconvenience to the taxi drivers. 3 months.
OLUSOJI (1994) 15 CR.APP.R.(S) 356
Student Grants
3 years imprisonment for guilty pleas to 6 counts was upheld where the appellant had used 29 different aliases to obtain £20,7000 of student grants and attempted to obtain a further £50,000. He pleaded guilty to obtaining property by deception.
R. v. ADEKUNLE ADEBAYO [2007] EWCA Crim 878
The defendant went to an employment agency and produced two documents, a national insurance card and a Nigerian passport which were fake. The defendant claimed that he had entered the United Kingdom about 10 years earlier and had lost his Nigerian passport. He had paid £2,500 for the two false documents which he had produced. Sentenced 2 years reduce to 15 months. Recommendation for deportation.
The court considered Kolawole and Mutede and stated the distinction was between the use of a false passport which is "of very considerable significance to the security of this country and to the propriety of immigration laws" (Kolawole range 12 - 18m) and cases where the defendant had a genuine passport, but used false documents in order to obtain employment (Mutede 6m).
The court also stated that it is more serious to use false documents to seek to obtain employment than to open a bank account
Ancillary Orders:
- Restitution
- Compensation
Consider Also:
- POCA
- Financial Reporting Order S15 SOCA 2005
