No: 201105449/A5 
Neutral Citation Number: [2012] EWCA Crim 518
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 1 March 2012

B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE WILKIE 

MR JUSTICE STADLEN 
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R E G I N A 

v 

CHRISTOPHER RAYMON O'BRIEN
 
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Mr A Bell appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE WILKIE:  Christopher O'Brien, aged 45, appeals by leave of the single judge against sentences totalling seven years and two months imposed on him at the Crown Court at Birmingham on 9 September 2011.  On 10 November 2010 at the same court he pleaded guilty to an offence of affray.  On 18 July 2011 in the same court on a different indictment he pleaded guilty on rearraignment to one offence of conspiracy to defraud.  The sentence of the court was one of seven years and two months in respect of the conspiracy to defraud and 12 months in respect of the affray to run concurrently with the sentence on the conspiracy.  In addition, and in connection with the affray indictment, for a section 41 offence of failing to provide a specimen of breath a sentence of three months' imprisonment was passed concurrent with the other two and he was disqualified from driving for six months.
2.	The conspiracy to defraud charge was one which he faced along with two other men.  In connection with that conspiracy another co‑defendant pleaded guilty to a money laundering offence, receiving a suspended sentence.  A yet another co‑defendant stood trial and was acquitted of an offence of acquiring criminal property.
3.	The two male co‑conspirators, Matthew Bucknall and Gary Woods, were sentenced respectively to five years and four months and 21 months' imprisonment in connection with the conspiracy to defraud.  There is no disparity point taken.
4.	The conspiracy ran for a period of two years plus.  It concerned men or groups of men approaching and targeting vulnerable elderly people living alone and in various different forms persuading them that they needed substantial building work to be done on their houses, performing that work, grossly overcharging them and performing the work badly in some cases so that the work which they had done would require expensive further work to put right what they had failed to do properly.
5.	In relation to the appellant he pleaded guilty at the outset of the trial before a jury had been sworn on a specific basis which was accepted by the prosecution and acted upon by the court.  He particularly denied that he had played any part in any dishonesty towards one of the victims, a Mr George.  He also pleaded guilty to involvement in overcharging the householders for building works but he had no involvement in subsequent frauds relating to certain false insurance claims.
6.	The learned judge in describing the offending in the course of his sentencing remarks described the victims as being in their late 70s or older.  In fact, there were four such victims.  They had lost enormous sums of money, had been cheated and felt humiliated.  The appellant was the leader of the conspiracy.  It was a conspiracy of some sophistication: the use of a van, of cards, of uniformed clothing, headed paper and, in particular, there were certain tricks of the trade used to persuade vulnerable elderly people that they required serious work done, particularly to the joists forming part of the roof.
7.	The appellant had previous convictions in relation to such offending.  In 2003 he was convicted of obtaining property by deception.  In 2007 he was convicted on two counts of harassment, each of which arose out of building work disputes.  In addition to that, for part of the period covered by the conspiracy he was in fact on bail, having been arrested by the police in relation to complaints made by one of the victims of the overall conspiracy and having been granted police bail, nonetheless he continued to act as the leading light of this continuing conspiracy.
8.	The judge had been told that the victims of the conspiracy had paid over some £170,000 in total, although in fact some of the victims, or anticipated victims, had not paid any money over.  Of that £170,000 some £80,000‑odd concerned the victim George in respect of whom the appellant was not accepting responsibility and for which he was not to be sentenced.  Accordingly the amount of loss to the victims for which this appellant had admitted being responsible was just shy of £100,000.
9.	The sentencing judge was referred to the Definitive Guidelines in relation to statutory fraud.  In connection with this particular offender he said that the guidelines did not fit in his view because there were a number of events and he did not think that the guidelines particularly fitted.
10.	It is said as a matter of criticism that the judge was not entitled so to describe the offending.  In our judgment, there is merit in that criticism.  It is clear from the guidelines themselves that this type of continuing fraud, involving the deliberate targeting of victims over multiple transactions are well catered for within the matrix which is set out in the guideline.
11.	There may be some argument as to the category within which this particular offending fell.  Counsel for the appellant has sought to argue that it is not in the top level because there were some four victims which could not be described as a large number.
12.	Be that as it may, he was constrained to accept that there were present a number of aggravating features, notably his previous convictions for similar criminal activity, the facts that there were a number involved, albeit four, the fact that he was in a position of leading this conspiracy, the fact that the conspiracy had gone on for a substantial period of time, some two years and the fact that for part of that period he was on police bail.
13.	The guidelines are not so inflexible as to prevent an accumulation of aggravating features raising the seriousness of the offending from one level to another.  In our judgment, the sentencing judge would have been entitled, having regard to all the aggravating features and all the facts of the case, to have considered the seriousness of this offending to fall within the top level of large scale advance fee fraud or other confidence fraud involving the deliberate targeting of a large number of vulnerable victims where the amount lost was getting on for, though just shy of, £100,000.
14.	Under the sentencing guidelines matrix the starting point after a trial for such an offence is one of four years' custody with a sentencing range of between three and six years.  Taking this offending as being at the top end of that level, in our judgment, the appropriate starting point for sentence for this conspiracy after a trial would have been one of six years' imprisonment.  The appellant was entitled to some, though limited, credit for his very late plea of guilty.  No criticism has been made of the fact that the judge discounted the sentence by 10 per cent.  Applying that percentage discount, the sentence for the conspiracy would properly have been measured in terms of five and a half years' imprisonment.
15.	The sentencing judge, however, made it very clear to the appellant that as far as the matter of the affray was concerned and the associated driving offence, he would have imposed consecutive sentences.  There could have been no criticism of him had he done so.  He did not do so because he said, he bore in mind the fact that the appellant was now about to serve a long sentence and as a act of mercy those sentences would be concurrent with the main sentence.
16.	In our judgment, to a certain extent that reasoning, legitimate as it might have been given the sentence of seven years and two months which he was about to pass for the conspiracy, falls to be changed somewhat at this stage having regard to the fact that the appropriate sentence for the conspiracy to defraud would be reduced to one of five and a half years' imprisonment.
17.	In our judgment, having regard to all the factors including the question of totality, the appropriate outcome of this appeal is to reduce the sentence in respect of the conspiracy to defraud from seven years and two months to one of six years' imprisonment.  The other sentences will remain and will remain running concurrently.  In reducing the sentence for the conspiracy to defraud only to six years rather than some lower figure we have regard to the totality of the offending for which the sentencing judge had to sentence the appellant.  In our judgment, the appropriate total sentence is one of six years which we achieve in that way.  Accordingly the outcome of this appeal is that the appeal against sentence in respect of the conspiracy to defraud succeeds to the extent that we quash the sentence of seven years and two months and substitute for it a sentence of six years.  All the other orders which the court made will remain.