Thandiwe Matikiti v. Her Majesty’s Advocate [2020] HCJAC 2

Note of appeal against sentence:-  In September2019, at Livingston Sheriff Court, the appellant pled guilty to a charge of fraud by advising the Student Awards Agency Scotland (SAAS) that the Home Office had given her indefinite leave to remain in the UK when she had not been granted such leave and presenting a fake visa which stated that she had indefinite leave to remain, and obtained funding from the SAAS for the sun of £23,000 over a period of three years. The appellant was sentenced to 14 months imprisonment backdated to 18 June 2019, discounted from 18 months to reflect the plea of guilty. The appellant appealed against her sentence on the grounds it was excessive there being an appropriate alternative sentence available to the court. The court noted that, whilst the appellant was due to be released from her sentence the week following the appeal hearing, given that a custodial sentence of 12 months or over results in automatic deportation under the relevant immigration rules, the court considered the appeal. It was submitted on behalf of the appellant that the headline sentence of 18 months was excessive (there was no issue with the level of discount allowed) and, whilst it was recognised that a fraud of in excess of £20,000 will often result in a custodial sentence, such a sentence is not inevitable as had been stated by the sentencing sheriff. It was further submitted that the appellant had no previous convictions and, as such, had never received a custodial sentence and therefore enjoyed the protection provided by section 204(2) of the Criminal Procedure (Scotland) Act 1995. It was submitted that the appellant’s intention had not been to fund an extravagant lifestyle but, rather, to fund her education to enable her to pursue  a career in nursing in the UK. In addition, the false visa document had only been shown once and the appellant had suffered from a very difficult upbringing in Zimbabwe before fleeing and then being subjected to an abusive marriage. Here the court allowed the appeal. The court noted that the sheriff had concluded that there was no alternative to a custodial sentence of the length imposed being available, however, the court considered that to be an error. The court stated that the caselaw does not require for a custodial sentence to be imposed in such a case particularly in light of the presumption which now exists against sentences of less than one year. The court considered that in light of the particular circumstances of the case, which the court considered to be exceptional, in particular, the appellant’s intention for the money to be used to fund her professional training, together with the statutory presumption against the imposition of a custodial sentence for her lack of a previous sentence of imprisonment, the court considered that a community payback order was the appropriate alternative sentence. Given, however, that the appellant had by the time of her appeal hearing completed the majority of her sentence the court quashed the sentence of imprisonment and admonished the appellant.