Mark Conway v. Her Majesty’s Advocate [2020] HCJAC 48

Scottish Criminal Cases Review Commission Referral:- On 2 August 2017, at Edinburgh High Court, the appellant pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of fraud involving him forming a fraudulent scheme whilst employed as an IT officer for Dundee City Council and obtaining the sum of £1,065,085.32 by fraud. On 24 August 2017, following the obtaining of a Criminal Justice Social Work Report, the sentencing judge imposed a sentence of 5 years and
4 months imprisonment, discounted from a period of 8 years imprisonment to reflect the plea of guilty. In August 2019 the appellant applied to the Scottish Criminal Cases Review Commission seeking to have his case referred to the high court. In a statement of reasons dated 27 March 2020, the SCCRC referred the appellant’s sentence on the basis that there was fresh evidence that following his sentencing Dundee City Council had recovered sums equal to the value of the fraud and had that information been available at the time of sentencing it may have had a material bearing upon the sentence imposed. Reference was made to other similar cases where recovery of the sums defrauded had been made and which resulted in sentences significantly shorter than that imposed in the appellant’s case. The SCCRC considered that the sentence imposed may have been outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. A note of appeal was lodged reflecting the statement of reasons. It was submitted on behalf of the appellant that when the sentencing judge was informed that there was no realistic prospect of the victim recouping the full sum libelled that was misleading and in fact Dundee City Council were in possession of fidelity guarantee insurance. It was further submitted that, having regard to the Principles and Purposes of Sentencing Guideline Prepared by The Sentencing Council for Scotland, an important aspect of the sentencing process involved assessing the financial loss to the victim and in the present case there had been little in the way of lasting financial impact. It was further submitted that there were a number of mitigating factors present, for example, he was a first offender with an exemplary work record who was assessed as posing a minimal risk of further offending. Here the court considered a number of cases which were referred to which pointed to the repayment of financial loss as being a relevant factor at sentencing. The court recognised that recovery or repayment of financial loss incurred as a result of an accused’s dishonesty may, depending on the facts of a case, be a relevant factor available to a sentencer when deciding the appropriate sentence. Here the court considered the circumstances of the repayment. The court was of the view that the approach adopted by the sentencing judge had been correct and that only a custodial sentence was appropriate having regard to all of the relevant factors available to him at that time and the new information relied upon should not have a significant impact on the length of the appropriate sentence. The court considered, however, having regard to some of the cases referred to that the sentence imposed in relation to the appellant was high in comparison and, having regard to those comparable cases, the court quashed the starting point of 8 years and substituted a starting point of 6 years discounted to 4 years to reflect the plea of guilty under the accelerated procedure.