No: 2005/5089/A5 
Neutral Citation Number: [2006] EWCA Crim 244
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 31 January 2006
 
B E F O R E:

LORD JUSTICE GAGE 

MR JUSTICE NELSON 
 
SIR JOHN ALLIOTT

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R E G I N A 

-v- 

SAM MITCHELL
 
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MR N HAMBLIN appeared on behalf of the APPELLANT
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J U D G M E N T 
1.	MR JUSTICE NELSON:  On 23rd August 2005 at the Crown Court at Lewes, the appellant was convicted of eight offences of obtaining property or money transfer by deception.  When he was sentenced the same day he asked for five offences of a similar nature of obtaining property or money transfer by deception to be taken into consideration and those were by the judge.  On the same day, 23rd August 2005, he was sentenced to seven years' imprisonment on each of the eight counts concurrent, making a total of seven years' imprisonment.  He appeals against that sentence by leave of the single judge.  
2.	There was a co-accused, Emma Mitchell, the appellant's daughter.  She was convicted of assisting in the retention of the proceeds of criminal conduct and facilitating the retention, use or control of criminal proceeds and was sentenced to a 200 hour community punishment order.  
3.	The facts are that from the beginning of 2000 to the end of 2003 the appellant dishonestly obtained money from two elderly individuals, Mr Heal and Mrs Taylor, both of them at the time in their late seventies.  The appellant's method was to pretend that their homes needed some roofing work, that he would carry out the work and that the monies paid to him, often in advance, were a fair price for the work.  In fact such work as he carried out was of poor quality and he knew the value of it was far less than the amounts he obtained.  His daughter, the co-accused, allowed him to pay some of the money he obtained dishonestly into her bank account.  
4.	In January 2000 when these offences started the appellant knocked on the front door of Mr Heal's bungalow and offered to clean his gutters.  Mr Heal accepted and let him get on with the work.  The appellant then advised him the roof would need remedial work and that was the beginning of a pattern which carried on for over three years.  The overall sum the appellant obtained from Mr Heal was nearly £94,000.  This caused Mr Heal considerable financial hardship and having exhausted his life savings he had to rearrange his finances with an equity release on his house, the consequence of which was that approximately half the equity in his house was lost.  Most of the payments were made to the appellant in cash.  Some five payments were made by cheque.  
5.	The offences came to light when Mr Heal's daughter visited her father in late November 2003 and on hearing her father's account of what was going on alerted the authorities.  An independent surveyor was requested to look at Mr Heal's property.  He did and found that the majority of the alleged work carried out was poor and that the overall amount of work carried out was actually worth in the region of £2,000.  
6.	As a result of their enquiries, police officers found that the appellant had targeted Mrs Taylor, an 83-year-old woman, in 2002.  She had hired him to do some work on her roof and had paid him £7,500 in total to do so.  An independent surveyor considered the charges for that work to be extortionate, unnecessary and most of it was indeed worthless.  It was those offences in relation to Mrs Taylor which the appellant asked to be taken into consideration.  
7.	He was arrested on 15th May 2004.  In his first interview he said that he had done building work for Mr Heal for nothing since they were friends, that the money given to him by Heal was a gift and that no cash had changed hands.  He used his daughter's bank account for cheques because he did not have a bank account of his own.  In his second interview concerning Mrs Taylor he declined to comment but read out a statement saying he worked for her on a number of occasions and believed that he had carried out the work correctly.  
8.	The appellant is a man who was born on 25th January 1954.  He has various convictions, none for which he received a custodial sentence and none in the recent past.  When the judge sentenced him he said that on the clearest of evidence, which of course the judge had heard, the appellant had been convicted and his dishonesty as described by the account that he gave of what had happened was blatant.  He was an unprincipled man without any idea of honesty or decency and had tried to talk his way out of the allegations and showed no remorse or regret.  The sum over the three year period for Mr Heal was some £94,000.  He preyed on the elderly and had done here.  It was inconceivable that he did not know that Mr Heal had had to take out loans as a result of the extortionate demands which he had made.  The victims were not only elderly but vulnerable and had suffered as a consequence.  The appellant was even prepared to involve his own daughter who now had a criminal record because she went along with his gross dishonesty.  The appropriate sentence was therefore, the judge concluded, seven years concurrent on each of the offences in relation to Mr Heal having taken into account the offences relating to Mrs Taylor.
9.	Before us today Mr Hamblin has submitted that the sentence of seven years was simply too long.  He prays in aid the appellant's age (51), his health (he has high blood pressure), the fact that his wife is totally dependent upon him, the fact that although he has previous convictions he has never served a custodial sentence showing that they were not regarded by the courts then sentencing him as being serious.  He contrasted with this situation the cases upon which he relied in his written perfected advice and today in particular such as the case of R v Campbell [1995] 16 Cr.App.R (S) page 20 where a five year sentence of imprisonment for obtaining over £64,000 from an elderly lady by falsely representing the need for building work was reduced to one of four years in the Court of Appeal.  The deception there was against a 78-year-old woman.  The total sum obtained, as we have said, £64,000, and the distinguishing features were twofold: first of all that was a sentence where the man concerned had not only numerous previous convictions for dishonesty but had already observed substantial terms of custody including one sentence of four years.  When that case, and in addition the cases of R v Flynn [1999] 1 Cr.App.R (S) 413 and R v Bennett [1992] 13 Cr.App.R (S) 586 were considered, it could be seen that the sentence was too long in the case of this appellant, bad though the offences were.  
10.	We agree with the remarks which the sentencing judge made when passing sentence and indeed his analysis.  The Court of Appeal has referred to cases of this kind as being outrageous, mean and devious, and even evil.  The characterisation is particularly apt to offences where the criminal conduct involves a sustained period of preying on the elderly.  Here very substantial sums were involved.  The offences took place over a considerable time and the victim lost a considerable portion of the value of his house in order to pay the appellant for the unnecessary works carried out.  These were without doubt serious offences.  It is to be noted that in Mrs Taylor's case (the offences to be taken into consideration) those were also against an elderly victim.  It would be right to say that the appellant's conduct was despicable.  But this court has to ask itself whether given the line of authorities and the general pattern of sentencing in cases of this kind, the sentence of seven years was overall too high.  
11.	We have come, after considerable thought, to the conclusion that it was.  When one looks at, as has been cited by Mr Hamblin today, the case of Campbell and indeed the cases of Flynn and Bennett as well, it can be seen that cases of this kind, even for substantial sums, customarily receive a sentence of the order of four years' imprisonment, sometimes on a plea sometimes on a fight. Campbell is an example of a contested trial, worse in some ways than this though somewhat less in the overall value of money taken, where four years was the sentence which was substituted by this court.  We have considered and concluded therefore that this sentence was severe, it was for a very bad offence, but in spite of the meanness and the sustained nature of the dishonesty, the sentence of seven years was too long.  In our view a sentence of six years would meet the justice of the case.  Accordingly, the sentence of seven years on each of the eight counts is quashed and a sentence of six years on each count concurrent is substituted for it, making a total of six years.  To this extent the appeal is allowed.