Adam Hulin escapes jail for oral rape – another AG Ref?

Adam Hulin 5

Introduction 

We were directed towards the case of Adam Hulin, a 19 year old man who received a 12 month Community Order for rape and assault by penetration on 24th April 2014, so we thought we would have a quick look.

The facts are a bit hazy. We know that this was in 2012 when Mr Hulin would probably have been 17 (we don’t know his date of birth however). There was one victim who would have been aged under 13, but we know no more than that.

There were originally three allegations – oral rape and assault by penetration, to which there was a guilty plea. There was then a trial for a further allegation of vaginal rape during which the jury was discharged from giving a verdict and there was a Newton hearing. A Newton hearing essentially a trial on a factual point. There is no jury and the decision is made by the judge. The defendant may give evidence but does not need to. The defendant It is not clear what triggered this, or what was actually happening.

We understand that there have already been calls for an AG Reference.

Comment

On the face of it, this seems a very low sentence. The adult guidelines will apply as Mr Hulin was aged over 18 at the time of sentence.

The guidelines for rape start at p27 and for assault by penetration at p33.

And at that point, we draw a blank as we have no idea what the facts of the case are … We can see that the lowest starting point is 8 years with a range of 6-11 years for rape (the law makes no distinction between sentencing for oral, anal or vaginal rape) and 4 years with a range of 2-6 years for assault by penetration.

One can see from that that the sentence passed is miles below the guidelines. Even taking the lowest point in the range and giving full credit for the plea of guilty, that would be a sentence of 4 years.

Conclusion

So, has the Judge got it wrong? Not necessarily. Sentencing is supposed to be an art, not a science. We have seen plenty of cases where Courts have gone outside of the guidelines (above and below) for good reasons, and that is something to be encouraged in the right sort of case.

Was this the right sort of case to pass a non-custodial sentence? We don’t know as we don’t know the facts. Let’s wait and see if there is an AG Ref.

Tracy Johnson – “agoraphobic” jailed for benefit fraud

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Introduction

Tracy Johnson was convicted in March 2014 of 12 counts of benefit fraud. On 23rd April, she was sentenced to 12 months in prison.

It seems that Ms Johnson was claiming (unspecified) benefits on the basis that she had agoraphobia and was effectively house bound. During this time (2008-2012) Ms Johnson was in fact living a”“champagne lifestyle”, which included travels to Argentina, New York and Madrid.” This was funded, in part, by a travel guiding business that she operated in Argentina and a book that she had written. She was convicted of falsely claiming £48,000 in benefits.

 Comment

There are Sentencing Guidelines for Benefit Fraud (page 25). It looks like Ms Johnson was actually claiming benefits legitimately originally, but failed to declare the changes in her circumstances. This makes the offence less serious, and it would appear to be in the 3rd row and 3rd column. This gives a starting point of 36 weeks for a fraud of £60,000 with a range of 12 weeks to 18 months.

Here, there is no credit for a plea of guilty and the Judge appears to have taken a pretty dim view of what was a pretty blatant fraud. This is therefore higher than could be expected, but not so much as to be appealable.

It seems that the money that Ms Johnson obtained was all spent, bar £600. The BBC reported that she would not have to pay back any of the money (as there was none left) save for the £600 she had already paid back. It seems as though no compensation order was made as she has no means by which to pay any money back.

Man fined for goldfish neknomination stunt

Taken from the BBC

Taken from the BBC

Gavin Hope, aged 22, pleaded to an Animal Welfare Act 2006 offence and was sentenced on 23 April 2014.

The law

The RSPCA prosecuted Hope for, presumably, under section 4 of the 2006 Act – that of causing unnecessary suffering to an animal. We presume it is under subsection

(2) A person commits an offence if:

(a) he is responsible for an animal,

(b) an act, or failure to act, of another person causes the animal to suffer,

(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d) the suffering is unnecessary.

The offence is a summary only offence, triable therefore only in the Magistrates’ Court. The maximum sentence is a £20,000 fine and/or 6 months’ imprisonment.

The facts

The BBC reported that the RSPCA Chief Inspector said:

“The video shows Mr Hope prepare a pint glass with lager, chilli, tequila, a fresh egg and fish food.

“He picks up another glass containing a small amount of water and the goldfish, which is swimming around, and shows it to the camera before drinking it down, and following it with the pint.

“A vet report advised that the stomach would be a completely unsuitable place for a goldfish and that the fish would have died in time, the cause of death being a mixture of suffocation and acid ph levels in the stomach, as well as the alcohol he drank.”

It was said that it was after the decision to flush the fish down the toilet that Hope decided to drink it as a part of the Neknomination craze and that the decision was impulsive.

Sentence

Hope was fined £300, ordered to pay a £30 victim surcharge and £431 in costs.

The starting point is to look at page 40 of the guidelines. As usual, it can fairly be said that the offence does not fit into any of the three categories.

Whilst it was ‘one impulsive act’ (a descriptor in category 1 – the lowest category), it was also an attempt to kill – in fact it did kill – the fish (a descriptor in category 3 – the highest category). The sentencing range is from a Band B fine to 26 weeks’ imprisonment.

A Band B fine is 100% of relevant weekly income (range, 75-125%). Relevant weekly income is calculated from information provided by the offender on a means form, which they are required by law to complete.

In the event, Hope was fined £300. There is no information about his income and therefore it is difficult to say whether the fine was in accordance with the guideline. It is possible to say however, that the decision to impose a Band B fine – if that is the decision of the court – seems fair, considering Hope’s guilty plea. This is because to impose a Band B fine, the court would have started significantly higher than that level before giving a reduction for his guilty plea.

On a minor issue, the victim surcharge – a point often missed or incorrectly calculated by the courts – was correctly imposed in this case. Where an offender is fined, the surcharge is 10% of the fine.

Teenage boy jailed for raping his sister

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Introduction 

The Daily Mail reported today (23rd April 2014) of a boy who raped his sister about fifty times over a two year period, starting when he was aged 13 and she nine.

The details are sketchy, but it seems to have been fortnightly, only ending when the boy formed a sexual relationship with another girl.

He was sentenced to 10 years detention. The usual rules about release apply and he will have to serve 5 years in prison.

 

Comment

The sentencing remarks have not been released and the only thing that we have to go on (other than the facts in the Mail) is that the Judge said that had it been adult who committed the same offences then he would have got a 20 year sentence.

Despite the fact that the offences go back to 2011, the guidelines that came into force on 1st April this year are the applicable ones for an adult. The offence of rape of a child starts at page 27. However, the  guidelines only apply to someone aged over 18 at the time of sentence. There are some guidelines for sentencing for under 18s but these to not apply to this offence.

In those circumstances, one is meant to turn to the Overarching Principles : Sentencing Youths guideline. This doesn’t give actual guidelines, more guidance on sentencing youths.

The Judge appeared to take the nominal sentence for an adult and halved it, so let’s start there. Approaching it without looking at the age of the boy seems to be a difficult approach, but we can try. The first thing to look at is the Category. The things to look out for are :

  • Severe psychological or physical harm
  • Pregnancy or STI as a consequence of offence
  • Additional degradation/humiliation
  • Abduction
  • Prolonged detention /sustained incident
  • Violence or threats of violence
  • Forced/uninvited entry into victim’s home
  • Child is particularly vulnerable due to extreme youth and/or personal circumstances

It is difficult to know which, if any, of these apply. There is no reference to ‘severe’ harm or any of the other factors in the news reports. For it to have been a 20 year sentence, the Judge must have put it in the highest category. Although it doesn’t fit neatly into the “Prolonged detention /sustained incident” it must be that this applies.

Whilst the victim was vulnerable due to the fact that it was her brother, I would say it is different to being a father or step-father. She was not showing ‘extreme’ youth in my view (aged 9 when the guidelines are for under 13s).

For that reason, I would put it into Category 2 (just) because of the repeated ‘campaign’ of abuse and the other factors.

There is then a need to look at the culpability. The two features here that may be relevant are - Breach of Trust and Grooming behaviour. Again, it is hard to say which of these apply. I would suggest that it falls into the lower culpability.

These would give a starting point of 10 years, with a range of 8-13 years. If we follow the Judge and halve the sentence, this gives a sentence of 5 years. There was a trial, so there was no credit for a plea of guilty.

The problem here is that if this is an adult, this sentence would be far too low. And given his age, 10 years is too high in my view. To my mind this is the sort of case where, actually, the guidelines go out the window. I actually think this is a case where there should be a much lower sentence, but an extended sentence, so that there is scope for supervision.

 

Conclusion

I would imagine that there will be an appeal, just because the case is so unusual. The Judge heard the trial however and it wouldn’t surprise me if the Court of Appeal defer to his judgement on the matter.

It is also an example where the guidelines don’t really help – if anything, they just make it worse (as is so often the case).

 

 

 

Is the Mail on Sunday guilty of fraud?

Photo for Daily Mail article

Photo from Daily Mail article

Introduction 

The Daily Mail got into the Easter spirit this year with a story they released on Saturday 20th April 2014. Apparently people who may not actually be starving are using food banks and sometimes getting food without begging for it. And, what is worse, some of these people were foreign.

There was an undercover sting, of sorts, as one of their reporters, Ross Slater “GOT 3 DAYS OF GROCERIES… NO QUESTIONS ASKED”. Surprisingly for the Daily Mail, this is not quite correct. Mr Slater didn’t get the food (which included such luxuries as :creamed rice pudding, cost -15p; new potatoes in water, cost - 15p; processed peas, cost - 21p and kidney beans, cost 25p;) ‘no questions asked’.

As the story makes clear, there were plenty of questions asked (name, address, phone number, purpose of visit and a “series of questions about why the food bank vouchers were needed” which Mr Slater did not answer truthfully . The food was, therefore, obtained by Mr Slater because of the lies told by him.

 

Is this fraud? Intuitively, telling lies in order to get something sounds pretty fraudulent? The relevant statute is ‘Fraud by False Representation’ contrary to s2 Fraud Act 2006, which reads (in part) as follows:

Fraud by false representation 

 (1) A person is in breach of this section if he—

     (a) dishonestly makes a false representation, and

     (b) intends, by making the representation—

         (i) to make a gain for himself or another, or

         (ii) to cause loss to another or to expose another to a risk of loss.

  (2) A representation is false if—

       (a) it is untrue or misleading, and

       (b) the person making it knows that it is, or might be, untrue or misleading.

Lying about his name and personal circumstances is clearly a false representation.

  But is there a gain – the food got given back?

Mr Slater gave the food back at a later stage it seems. Is that enough to stop it from being fraud? Under s5(2)(b) Fraud Act, ‘gain’ and ‘loss’ : “include[s] any such gain or loss whether temporary or permanent“.

For this reason, even if the property was later restored, this would not stop there being a ‘gain’ or ‘loss’ for the purpose of the Fraud Act. It may have an impact on the last issue, that of dishonesty, however.

Is this dishonest?

Certainly many people would think so, at least in the colloquial sense. The legal test for dishonesty is often called the ‘Ghosh test’, coming from the case of R v Ghosh [1982] EWCA Crim 2.

There is a two stage test :

(i) “a jury must first of all decide whether according to the ordinary standards of reasonable and  honest people what was done was dishonest”. If no, then there is no dishonesty. If yes, then

(ii) “the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest … it is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did”.

Ultimately, this would be a question for a jury (or magistrates, if the case stayed in the Magistrates’ Court). It is clear that if Mr Slater thought that he was acting in the public interest by exposing a generosity of spirit in his fellow countrymen, then that would not be a defence if he must have realised that other people would think it was dishonest.

 

 

Conclusion

So, is the Daily Mail employing fraudsters and encouraging their reporters to commit fraud? That would be a matter for you, as representative of the reasonable man and woman, to decide.

Police Officers caught stealing in sting

Photo from the Independent

Photo from the Independent

Introduction

When South Wales Police had concerns over the probity of two of their officers - Detective Sergeant Stephen Phillips and Detective Constable Jason Evans, they resorted to some Hollywood film style tactics to find out just how honest they were.

On the pretext of conducting a search relating to a suspected armed robbery, the two officers were dispatched to a house in Neath that had been rigged with audio and video surveillance in advance. They had placed “including around £21,000 in cash, watches, an iPhone and even Viagra.

The two officers took the bait and were later caught, pleading guilty on 17th April 2014 in Cardiff Magistrates’ Court. The case was adjourned for sentence, with the District Judge warning them they faced prison.

 

What will they get?

The build up of the piece implied scenes of thousands of pounds being taken in scenes worthy of the corrupt cops of Hollywood. “Cardiff Confidential” would be slightly less dramatic  DS Phillips made off with £250. Perhaps worse, DC Evans seemingly ignored the piles of cash and high-value electronic goods in favour of two disposable biros.

The Theft Guidelines are in theory the starting point. In practice these go out the window, as a police officer stealing in these circumstances will almost inevitable be sent to prison to send a message out that such behaviour is unacceptable.

Here, you can’t help feeling that the police who set up the sting were after something more – it’s a lot of effort to go to for such low level corruption. DS Phillips is certainly at risk of prison – stealing cash from a crime scene is certainly serious. Cash is obviously untraceably generally and when someone is arrested with cash and drugs which go “missing” (it happens, particularly with drugs) there is often an incentive for the loser to keep quiet about it. Personally I would give him a suspended sentence, but he may face a short immediate prison sentence of a couple of weeks.

DC Evans is, to my mind, in a different category. If everyone who stole biros went to prison, then our prisons would be even more overcrowded than they are now. Even given that he was dishonest (as he accepted by his plea, although if I were on a jury I would find it hard to say that that was dishonest unless there is more to it than appears in the new reports), it is of such a low level that the loss of his career (he will be sacked whatever the sentence) is more than a sufficient punishment.

So, we will come back to it when they are sentenced, but as we saw last year, it is not the case that all officers who steal are jailed (although that is a far less serious set of circumstances).

Caroline Lucas cleared

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We looked last year at the fact that Caroline Lucas MP was being prosecuted for two offences relating to an anti-fracking protest. Well, on 17th April 2014 she was acquitted of both charges.

The case was heard by a District Judge who would have given a full and reasoned decision, but we don’t have a copy of it as yet (hopefully it will be published). We can quote the following from the BBC :

District judge Tim Pattinson said the prosecution had failed to satisfy him that Ms Lucas had “the requisite knowledge” about the Section 14 order being in place.

On the obstruction charge, he said he did not hear any evidence that any “actual obstruction” of a vehicle or person was caused by the protest.

“I have already ruled that issues of climate change are irrelevant to the decisions I have to make in this trial,” he said. 

“Having said this, I am quite prepared to accept, having heard the evidence from all five defendants, that they are sincere and highly motivated in their commitment to the cause of reduction of carbon emissions.

It seems likely that there were plenty of arguments about Art 10 (freedom of expression) and Art 11 (freedom of assembly) as well as issues as to the right to peaceful protest under the common law. The Judge side-stepped and made a factual decision, which is perhaps not surprising – Judges hate having to address those issues as they are seen as inherently political (because they are). This urge to avoid anything political is all the stronger with the ECHR, for perhaps understandable reasons.