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Woman Loses Appeal Against Custodial Sentence After Committing Benefits Fraud

RA v HM Advocate [2021] HCJAC 27

The Appeal Court of the High Court of the Justiciary has rejected the appeal of a mother of six who sought to have her sentence reduced to a non-custodial alternative.

The appellant pled guilty to fraudulently claiming over £50,000 in child tax credits over a period of six years from 2012 to 2018. During this time, she had claimed that she was a single parent raising
her children on her own. However, it was later discovered that she had, in fact, been living with her employed partner and was not entitled to the amount of benefits she had been receiving.

At the appellant’s sentencing diet, she sought to argue in mitigation that a custodial sentence was not appropriate based on the fact that she was a primary caregiver to six children and had previously
been in an abusive relationship. She had argued that her former partner had been abusive and had spent the family income on alcohol, forcing her to commit fraud to make up the financial shortfall.
Despite this, along with a positive social work report, she was sentenced to 18 months in prison, which after her sentencing discount was reduced to 13 months.

The appellant sought to argue on appeal that given her personal circumstances, the context in which the offence was committed and concerns around the emotional wellbeing of her children, the
sentence was excessive. The appellant further argued that if the court remained convinced that a custodial sentence was appropriate, then the length of 18 months should be considered excessive.

Lord Pentland delivered the opinion of the appeal court. Referring to the sentencing guidelines established around benefits fraud, the court held that: “There can be no doubt that, in view of the large sum defrauded by the appellant, a custodial sentence would normally be required in terms of the guidelines approved in Gill v Thomson. The circumstances would have to be truly exceptional to justify the imposition of a non-custodial penalty in a case where such a large sum of state benefits had been fraudulently obtained.”

Accordingly, the court refused to reduce the sentence to a non-custodial alternative. This was primarily due to the facts that whilst the mitigating factors given by the appellant were compelling, they could not be considered exceptional. This was compounded by the fact that the offence had been consciously committed over a considerably long period of time. The court held that “it is important to ensure consistency and predictability in sentencing in cases of this type”.

After examining the arguments against the length of the custodial sentence, Lord Pentland said: “The Sheriff took full account of the appellant’s personal and family circumstances. She noted that the appellant would retain her tenancy and that her current partner could care for the children. The Sheriff selected a headline sentence which, in our view, properly reflected the appellant’s particular circumstances”.

The appeal was subsequently refused.

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