R.A. v. Her Majesty’s Advocate [2021] HCJAC 27


Note of appeal against sentence:- The appellant was indicted to the sheriff court in relation to a charge alleging a contravention of section 35 of the Tax Credits Act 2002 by fraudulently obtaining child tax credits over a period between May 2012 and January 2018. At a first diet the appellant pled guilty to an amended charge. The sheriff imposed a sentence of 12 months imprisonment discounted from 18 months to reflect the plea of guilty. The appellant appealed against the sentence imposed it being contended that in light of the appellant’s personal circumstances the imposition of a custodial sentence was excessive or, in the event custody was the only appropriate sentence, a starting point of 18 months imprisonment was excessive in the circumstances. The circumstances of the offence were that the appellant had certified that she was a single parent living with her children at an address in East Lothian whereas she had been living with her partner (who was in full-time employment) during this period in a single household and had failed to declare that. The appellant was aware of the requirement to notify HMRC of any changes in domestic circumstances as she had reported the birth of a child and changes in her childcare costs. The amount of the fraud was £55,000. It was submitted on behalf of the appellant that the sheriff had erred and the sentence selected was excessive. It was conceded that, in light of the monetary value of the fraud, the court was obliged to give consideration to a custodial sentence, however, it was submitted that on account of mitigatory aspects attached to the commission of the crime together with the appellant’s personal circumstances, there was an appropriate alternative disposal to custody available in the case, in the form of a Community Payback Order. It was submitted that the appellant had been the subject of a controlling abusive domestic relationship and her then partner had now been charged with an offence under section 1 of the Domestic Offences (Scotland) Act 2018 in relation to his controlling and abusive behaviour towards the appellant. It was further submitted that her partner would frequently absent himself from the home and leave the appellant and her 5 children without any financial support and she would require to lend money to her former partner and she was scared to ask him for financial support due to the violence he exhibited towards her. Furthermore, the impact of a custodial sentence upon the children was a further mitigatory factor and three years had passed between the last day of the libel and the date of sentencing. In addition, the appellant was repaying the money by way of a deduction from her benefits and was in a position to make further repayment at the rate of £100 per month in addition to the agreed deduction. The Criminal Justice Social Work Report assessed the appellant as being at low risk of reoffending and assessed her as suitable to carry out unpaid work as an alternative to custody. Here the court refused the appeal. The court referred to the guideline case of Gill v Thomson 2010 SCCR 922 where the court stated that offences above the level of £20,000 might attract penalties only available in solemn proceedings. Here the court stated that, given the significant amount defrauded by the appellant (£55,000), for the court to depart from the guidance in Gill v. Thomson the circumstances would have to be truly exceptional to justify the imposition of a non-custodial sentence. The court did not consider that such exceptional circumstances existed in the present case and a custodial sentence was merited and no error could be identified in the approach the sheriff took in selecting the headline sentence.