Easton & Piper: Sentencing and Punishment 2e 
DevelopmentsEaston & Piper: Sentencing and Punishment 2e
Chapter 3
Case study
At the end of Chapter 3 we included a sentencing exercise about Jemma. She was arrested, charged and pleaded guilty to obtaining property by deception, pursuant to section 15 of the Theft Act 1968, for which the maximum penalty is 10 years imprisonment. The facts of the case, on which the Crown Court Judge must pass sentence, are reproduced below:
Jemma, a 21 year old undergraduate, has been working part-time for the last two years as a care assistant at a Care Home for the elderly. In this capacity she persuaded six elderly residents to hand over £50 each to her, ostensibly to pay into a Christmas fund. This they all did one morning, as arranged, and she told them she would collect another instalment the following month. Jemma used the money to pay her rent as she was no longer eligible for a student loan, she had debts, and she could not rely on her father because his business had just collapsed. She was seriously depressed and was attending counselling sessions.
Jemma's deception was discovered before the next instalment was due because one of the residents from whom she had obtained money asked the Matron about the Christmas Fund. Jemma did not at first plead guilty, fearful that she would never obtain employment on graduating and believing the elderly residents were too ill and mentally confused to give evidence. In the event, a change of medication dramatically improved the physical and mental health of one of them. Jemma, therefore, changed her plea to guilty before the trial.
In between the offending and trial, Jemma graduated and was left a legacy of £3000 by an aunt. After paying her debts she has £150 left. She was given a reprimand at the age of 14 for shoplifting and had one previous conviction, at the age of 16, under section 18 of the Offences against the Person Act 1861, for which she received a probation order. (She was not given detention in a young offender institution because of mitigation in relation to the death of her mother and a subsequent depressive illness.)
You were asked to sentence Jemma, explaining and justifying your chosen sentencing framework and particular sentence.
As Jemma has not committed an offence of violence and is not to be dealt with under the Mental Health Act 1983 provisions, the normal 'just deserts' sentencing framework applies, although the fact that Jemma has suffered, and might still be suffering from, a depressive illness might be a factor in mitigation or the form of sentence. The main task is, then, to establish how serious the instance of offending was. You should consider the statutory factors which must aggravate seriousness and not that on the facts of this only that relating to previous convictions applies. However, when discussing relevant case law you would note that breach of trust, vulnerable victims and advance planning make offending more serious. In regard to factors that mitigate seriousness you would note the relatively small amount of money taken and the 'lone' nature of the operation. You must then decide whether this is a serious or less serious instance of theft in breach of trust.
You should then establish from guidance what is the 'normal range' of penalties for this offence and locate this offending within in order to establish the appropriate sentence. This might require you to consider whether the case surmounts the custody threshold. The latest Magistrates' Courts' Guidelines give an 'entry point' (norm for middle range serious offence in this category) of custody for theft in breach of trust but a community penalty as the entry point for obtaining property by deception. However, cases sent to the Crown Court are generally more serious and these entry points might not apply. You should at this point also consider personal mitigation and decide whether there are any valid reasons to allow you to exercise your discretion to reduce the sentence on that basis. On the facts of this case you might consider the effect of Jemma's depression, her financial difficulties and her family's problems. You might also note that she has paid off her other debts. Once you have established a sentence, you should decide the level of discount to give Jemma for her plea of guilty under the Criminal Justice Act section 144, using the latest guidance from the SGC and noting that her plea was given quite late in the process. You should also consider the terms of a compensation order (see Chapter 6).
You were then asked to decide whether your sentence would be different if the scenario were changed such that:
a) Jemma had no previous convictions
This requires you to examine in more detail the application of the provision in the CJA 2003 section 143(2):
In considering the seriousness of an offence ("the current offence") committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to-
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction.
Sentencing and Punishment discusses this issue of persistence in section 3.2.4 of Chapter 3, where references to further reading are provided.
b) Jemma defrauded the residents because they were all South Asians
This requires you to consider whether the motivation for the offence was the race of the victims. If so, you must apply the statutory provision in relation to racial aggravation (CJA 2003 section 145).
c) The current offence was committed whilst Jemma was on bail awaiting trial for a drug offence – a charge of which she was subsequently acquitted.
This requires you to consider the effect on the calculation of seriousness of the statutory aggravation relating to offending whilst on bail (CJA 2003 section 143(3)). It is irrelevant that Jemma was not convicted of the charge in relation to which she was remanded on bail.
d) Jemma worked in a children's home, had obtained property by deception from her fellow care workers and had also been convicted of possession of indecent photographs of a child under the CJA 1988 section 160. What if Jemma had instead incited a fellow care worker to commit an offence under the Protection of Children Act 1978?
The crucial difference in this scenario is that the offence of possession of indecent photographs of a child and an offence under the Protection of Children Act 1978 are 'specified offences': they are listed as sexual offences in Schedule 15 of the CJA 2003. If an offender has a previous conviction which is also listed as a sexual or violent offence in Schedule 15, then you must consider whether you are mandated to impose one of the protective sentences in sections 224-229 of the CJA 2003 in relation to this offence (see Chapter 5 in relation to 'dangerous offenders but note amendments to be made these sections when the relevant sections of the Criminal Justice and Immigration Act are in force.) Jemma has a previous conviction under the Offences Against the Person Act 1861 which is also a 'specified offence'. This means that, in the first scenario, if both specified offences had been dealt with on a previous occasion before the CJA 2003 was in force, then the CJA 2003 provisions do not apply. In the second scenario they currently do.
In addition you should consider whether Jemma needs to be registered under the Sexual Offences Act 2003 (see s 80; see also Chapter 1).
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