Thursday, January 12, 2006

Was It Worth It?

One of my Clients was recently sentenced for offences better known as benefit fraud. He was given a sentence that some people might think sounds quite sensible, but I cannot stop thinking that the logic behind the sentence is very much flawed.

Without going in to too much detail my Client had overclaimed benefits to the value of about £18,000. Now that is a lot of money. The Client pleaded guilty at the first opportunity. His case was adjourned for the Probation Service to prepare a pre-sentence report. He went back to the Magistrates Court and even though he had a very positive pre-sentence report recommending a community penalty he was committed for sentence to the Crown Court.

When sentenced at the Crown Court my Client was given a custodial sentence of four months. Now the leading cases on sentence for cases of this type say that a custodial sentence for the value involved in this case can be expected and should be imposed, in fact I advised my Client at our very first meeting that he was at serious risk of getting a custodial sentence. Before the Client had even been summonsed to Court he had been paying back the overpayment, now he has been sent to prison he has lost his business, he will probably be in debt when he is released due to a non-functioning business, he will probably struggle to get his business going again when he comes out in about 6 to 8 weeks time. By sending the Client to prison so that he can be maintained at one of her Majesty's Hotels the Court has deprived society of it's best chance of recovering the money that was fraudulently overpaid in the first place. As he was overpaid benefit the departments that overpaid him are entitled to claim their money back.

May be years of defence work really has made me biased. In an era where the prison population is at breaking point my Client has been sent to prison to be punished for a number of offences. I cannot complain about the sentence because legally it is correct, perhaps it is even morally correct. But financially it is illogical. Why send the Client to prison, where he will loose his current business, so that it will probably take 50 years to repay the overpaid benefit when giving him a community penalty would have allowed him to work and repay the debt in little over three years as he would have retained his income and his ability to repay the debt? At the end of the hearing I spoke with my Client in the cells, he described being sent to prison as an inconvenience and that he was more concerned about his financial affairs than the loss of his liberty. The irony is that the sentence he has been given has probably made it easier for him to avoid paying back the debt when he is released from prison, as an out of work convict who is going to want to employ a person who has a conviction for dishonesty? If his business cannot be restarted then he will be dependant on benefits again putting a further strain on the benefits system.

9 comments:

guv said...

A difficult one. I see your point but it does not sound like he was too bothered about a custodial sentence. Did he have a business whilst claiming benefits? If so I'm sure he will find another way to survive once out again, legal or not.

DnC said...

You're right, financially it is a poor decision, but you can't run a country ona purely financial basis. This sentence should put others off who might be more concerned about a custodial sentence.

Unfortunately a successful conviction like this is not as newsworthy as the usual diet of benefit cheats which tends to water down any deterrent effects of the sentence.

Anonymous said...

I don't think that people should be able to *buy* their way out of prison. This man stole from the taxpayer and for that crime, he should be and was punished. I think he should have been imprisoned for far longer and made to work in a chain gang to pay back the money he stole. I'm sick of criminals being coddled.

Anonymous said...

As you say, he was not 'bothered'. The problem is that the sentence was too short. Was he to have to serve 4 years instead of 4 months this would have a valuable deterrent effect on all the other potential cheats out there, so the fact this guy was going to end up costing the system more in the long run would be more than balanced out by the fraud which would be prevented.

Gavin said...

anonymous wrote:
I don't think that people should be able to *buy* their way out of prison. This man stole from the taxpayer and for that crime, he should be and was punished. I think he should have been imprisoned for far longer and made to work in a chain gang to pay back the money he stole. I'm sick of criminals being coddled.

I am not suggesting that this man should have been able to hold the Court to randsom and effectively pay his way out out of prison. I simply thought that the judge had given a sentence so short it would not have a positive impact on anyone. The sentence only served to take away the man's liberty for a short period of time and thereby prevent the speedy recovery of the money he owes to the state (and us).

Bystander said...

I sympathise with your POV, although given the guidelines it is at best borderline custody. Committal to the CC seem a bit strong though.

Anonymous said...

I'm in favour of harder sentences for DSS fraud, possibly because of a personal sentencing experience which still infuriates me when I think about it.

A while back I represented two clients for sentence in front of the same Crown Court judge.

The first client was a young mother charged with ABH on her six year old daughter. The daughter had serious learning difficulties and was hyperactive. The mother was working nights as a cleaner and her marriage was in trouble. Social Services accepted that the mother was basically a good parent, and that she had come to them begging for help with her daughter which they had not provided. When the daughter played up once too often, the mother, who came from a country where corporal punishment was acceptable and generally practiced, struck her with a belt (not the buckle end). Injuries were trifling. She was literally beside herself with guilt and shame. The PSR recommended a CRO. She had no previous convictions at all. There was a distinct possibility that the child would be taken into care if she went to prison.

The second client was a businesswoman in her fifties who was separated, but not divorced from, her husband. The Crown suspected that she wasn't actually separated from him at all, but couldn't prove it. She had two houses and had accepted housing benefit as rent from her husband for the house that she didn't live in. She turned up to court on the morning of the sentencing hearing waving a large cheque for the full amount of the benefit (which was well over £10,000).

The same judge sentenced both of them. The DSS lady was given a CPO and costs. The judge said that she should have gone to prison but the fact that she had paid back all of the money showed that she felt genuine remorse. The young mother got a twelve-month custodial sentence. Unsuspended.

I'm not necessarily saying that DSS frauds should always lead to prison and I think the result in this case was right. But like anonymous above I have noticed a tendency on the part of judges to let people buy their way out of benefit fraud. It isn't an option for people like the mother. Besides, benefit fraud is one of the things that leads to lack of government resources, which is why people don't get treatment for serious illness, and why there aren't enough nurses and teachers... and why Social Services can't always give struggling parents the help they need before things come to a head at home.

I'm impressed that your judge didn't buy into the same "victimless crime" thinking that leads defendants to commit benefit fraud in the first place.

Nigel said...

"Before the Client had even been summonsed to Court he had been paying back the overpayment"
I don'tunderstand what this means? It seems to suggest that he started repaying the amount stolen of his own accord, before he was caught. Or did he start repaying after being rumbled, but before he received his summons? If so then he is just a crafty git trying to buy his way out of jail, as others have suggested. He has stolen £18000 from you and me, and the old lady without heating, and the child who needs an operation and he should definitely go to prison. You say he didn't seem bothered by custody - but he couldn't possibly know whatwas ahead, unless he is a repeat offender. So maybe the sentence has had a deterrent effect on him, which is the purpose after all.

Gavin said...

Nigel,

The way that benefit prosecutions work is that first there is an investigation. That investigation will usually involve an assessment of the claim made against the new facts unveilled about employment etc., and also an interview to see what the Defendant has to say. Whilst a decision is made whether to prosecute the Defendant in the criminal courts a decision will always be taken as to whether a benefit overpayment has been made or not. In the vast majority of the cases that I have dealt with over the past few years the person who overclaimed benefit was repaying the benefit before the final decision whether to prosecute them in the criminal courts had been made. So he had been caught and he was paying the money back before he knew that he was going to be taken to Court. This is not behaviour of a Defendant being a crafty git, it is the way things usually happen, and if he hadn't started to repay the money he would have been taken through the civil courts for the debt anyway.

The point I made earlier was that by repaying the money before the prosecution began, and the fact that he was in a position to repay the money at a faster rate if he was not sent to prison would mean that the old lady without heating, and the child who needs an operation, can get their heating and operation quicker if he was to remain in the community in employment.

He did not seem bothered by a custodial sentence because he had been to prison before. In my opinion the Client did not view consider his actions and the possible deterrent sentence that could be imposed before getting involved in the crime - most convicted criminals do not think that they are going to get caught.