On Monday 22nd October, Darren Smith, a former manager of ITV was jailed for three and a half years for ‘conning’ £140,000 out of ITV. He had created fake invoices to siphon off money purporting to be for legitimate expenses. He recruited Steve Marsden to pose as a director of the fake company and bank the money. Mr Marsden was sentenced to two years imprisonment
Why did they get the sentences that they did? Firstly, although the headlines and some news reports refer to fraud and theft, the two charges that both faced were conspiracy to fraud and ‘acquiring criminal property‘ (a money laundering offence under the Proceeds of Crime Act 2002). Whilst full details are not available, it appears that the conspiracy charge would have related to the agreement between Mr Smith and Mr Marsden to conduct this fraud and the money laundering offence would relate to the balance in the bank account of the fake company (this being criminal property – money obtained by fraud).
The Fraud Guidelines specifically do not cover the offence of conspiracy to defraud and there are no guidelines for the money laundering offence. However, it is worth considering both the Fraud and the Theft Guidelines to give an idea of the length of sentence.
Taking this as a ‘confidence fraud characterised by a degree of planning and/or multiple transactions’ then this is in the second category. For sums in the range of £100,000 to £500,000 the sentencing range is 3-6 years with a starting point of 4 years (based on a starting point of £300,000). We know that there was a guilty plea, but don’t know what stage. But, assuming that there was an early guilty plea with full credit, the appropriate sentence would have been about three and a half years after a trial (and two years four months on a plea).
Turning to the theft guidelines, this would be characterised as theft ‘in breach of trust’. Here the guidelines are less helpful, but, looking at Mr Smith, he was in a ‘high degree of trust’ and the sentencing range is 2-6 years, with a starting point of 3 years (after a trial) for a sum of £20,000. On this basis, the appropriate sentence would probably have been about 4 years after a trial, or about two and three quarter years on a plea.
Why then did Mr Smith get more than this and Mr Marsden less? The difference between the two is easily explained : firstly, Mr Smith was the prime mover and organiser of the fraud and had recruited Mr Marsden who, as a recovering drug addict, was probably quite vulnerable. Secondly, Mr Smith was working for ITV and therefore this was in breach of the trust placed in him, which does not apply for Mr Marsden.
In light of that, the sentence for Mr Marsden makes sense, and seems to tie in with the guidelines. But, was the sentence for Mr Smith too high?
As stated, although the Fraud and the Theft guidelines give guidance, neither strictly apply to this offence. The Judge was entitled to take the view that, given the high degree of trust and careful planning required, the offence merited a higher sentence than the equivalent guidelines would indicate.
Without knowing more details, or seeing the full sentencing remarks, we can say that the sentence was within the proper range, but on the high side. We can probably expect an appeal.