No: 201704892 A2 
Neutral Citation Number: [2017] EWCA Crim 2508
IN THE COURT OF APPEAL
CRIMINAL DIVISION
   Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 13 December 2017 
 
B e f o r e:

LORD JUSTICE SIMON 

MRS JUSTICE YIP DBE

HIS HONOUR JUDGE LUCRAFT QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

R E G I N A 
v 
JOHN DAVID GIMBERT 
 
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Mr J Polnay appeared on behalf of the Attorney General

Ms R Pennington appeared on behalf of the Offender

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LORD JUSTICE SIMON:  

.    The Solicitor General seeks leave to refer to this court a sentence passed on John Gimbert under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  We grant leave.

2.    The total sentence was a term of three and a half years, passed in the Crown Court sitting in Birmingham on 6 October 2017 in respect of a number of related offences.  

3.    The offender is now 65.  On 23 February, he was convicted following a trial on four counts of theft, Counts 2, 8, 9 and 10; the jury was unable to agree on a charge of conspiracy to defraud, Count 1.  On 15 September, following a retrial, he was found guilty on Count 1.

4.    On 6 October, he was sentenced by Mr Recorder Nicholls to concurrent terms of imprisonment as follows: Count 1, conspiracy to defraud, three and a half years imprisonment; Count 2, the theft of the value of a bungalow worth £50,000, two years; Count 8, the theft of a sum of £14,000 from an account at Barclays Bank, 12 months; Count 9, theft of a sum of £13,651 from an account at the Britannia Building Society, 12 months; Count 10, theft of the balance of £101,000 from the account at Barclays Bank, three and a half years.

5.   The offences reflected what had been a gross abuse of trust by the offender, as an executor of a will and under a power of attorney that he had procured.  By his crimes he stole the £175,000 inheritance of a highly vulnerable person, his first cousin, Jeanette Trim.  
6.    Jeanette Trim is now aged 65.  She suffers from a lifelong learning disability with a significant impairment in intellectual and adaptive functioning.  Her full scale IQ places her within the bottom one to two per cent of the population and she has been assessed as being highly vulnerable to financial exploitation.  In November 2002, her father died.  Social services carried out an assessment and concluded that, as she was unable to live by herself, she should be placed in residential care.  The offender assisted her placement by visiting a number of residential homes with her.  Ms Trim's father left his entire estate to her, his wife having pre‑deceased him.  This estate consisted of a bungalow in Stoke‑on‑Trent valued by the sentencing Recorder at £50,000, a Britannia Building Society with a balance of £13,651 and a Barclays Bank account with a balance of £115,000.

7.     The offender, as the executor of her father's will, arranged for her to enter full time residential care following a recommendation by social services.  He did not however declare the Britannia Building Society account for probate and in due course, on 12 July 2004, he transferred the entire balance of the account, £13,651, to himself.  That was the basis for the charge under Count 9.  In about May 2003 he induced Ms Trim to sign in his favour an unlimited and enduring power of attorney, giving him unfettered power over her property.  In September 2003 he induced her to sign over the bungalow to his son, David Gimbert.  That transaction gave rise to the charges under Counts 1 and 2.  It was shown as being for a token consideration of £1 but in fact nothing was paid.  Subsequently, David Gimbert transferred the bungalow to another family member.  Between May 2003 and October 2004, the offender transferred a sum of around £14,000 from the Barclays account to his own bank account.  This money was used to purchase vehicles.  That gave rise to the charge under Count 8.  Between 28 September 2004 and 5 October 2004, the offender transferred the balance from the Barclays account, £101,000, to another family member, Count 10.  That money was used to pay for the deposit on a house.  

8.     In 2009 he complained to the Local Authority that Ms Trim was being overcharged for her residential care.  This led to an investigation of her financial circumstances.  Once social services became suspicious, the offender took steps to return the money he had taken.  He had set up what has been described as a labyrinthine network of bank accounts to conceal his conduct.  The matter was referred to the police and he was first interviewed under caution in December 2012.  The total sum stolen or defrauded was £178,651.

9.     The offender had no previous convictions or cautions.  He had retired in March 2002 having worked as a police officer for the West Mercia Constabulary.  On his retirement he received a lump sum payment, followed by annual pension payments of between £14,500 in 2004 to £18,800 in 2012.  The offender agreed in cross‑examination by counsel for his son at their joint trial that he was a domineering and overbearing influence on his children.

10.   The Solicitor General focuses on the two aspects of the offending, the conspiracy and the theft.  So far as the conspiracy is concerned, Mr Polnay draws attention to the Sentencing Council definitive guidelines for fraud offences.  Since the offending involved the abuse of a position of trust by someone who had a leading role in the conspiracy, the offending fell into category A, high culpability.  With reference to what is described as Harm A, financial harm, the sum involved was £50,000 and it therefore fell within category 3.  However, by reference to Harm B, victim impact, there was high impact since the victim was particularly vulnerable, being incapable of looking after her own financial affairs and entirely dependent on the offender.  This indicated that the offence should be placed in the next category, category 2A, with a starting point of five years and a range of three to five years.

11.  So far as the thefts are concerned, the theft guidelines applied.  Again, since the offence involved a breach of trust, it was category A, high culpability; and, since the loss was above £100,000, it was category 1 harm.  This basis the starting point was three and a half years and a range of two and a half to six years.  Again, the particular vulnerability of the victim and the sustained period during which the thefts occurred were matters of aggravation.  

12.  In relation to both aspects of the offending, the Solicitor General recognises the mitigation of his previous good character, the fact that the money was repaid, albeit after social services had become involved, and a degree of delay in bringing the matter before the court.  We would note also those matters of mitigation to which the Recorder referred, the effect on those members of his family who were not involved in the conspiracy and theft, a matter to which we will return.

13.  Mr Polnay submits that on conventional sentencing principles reinforced by the definitive guidelines on totality, where a court is sentencing for more than one offence, the court should pass a total sentence which should reflect all the offending, and which is just and proportionate.  On this basis, concurrent sentences will ordinarily be longer than a single sentence for a single offence.  It is accepted that the Recorder was correct to impose concurrent sentences but it is submitted totality should properly have been dealt with by an increase to what would otherwise have been the appropriate sentence on Count 1.  He submits that the sentences passed on the offender were unduly lenient, given the number of high culpability features, the value of the fraud and the Harm B factor, and that in these circumstances the Recorder ought to have imposed a higher sentence within category 2A.  He submits also that the Recorder gave insufficient or no weight to the principle of totality in failing to increase the sentence imposed on Count 1 and directing that all the sentences should run concurrently. In effect, the offender received no additional punishment for the theft of over £100,000 in breach of trust from a highly vulnerable victim.

14.  For the respondent, Ms Pennington made a number of oral submissions which should have been in a respondent's notice.  She submitted that the overall sentence reflected the overall criminality, albeit there was no reference to totality in the sentencing remarks.  She pointed out that the Recorder had presided over the trial and was in a good position to assess culpability and harm, as well as the matters of mitigation to which he referred in his sentencing remarks. The Crown accepted for the purposes of sentence that the money had been repaid; and she urged in further mitigation the offender's previous positive good character as a police officer and the particular impact of a sentence of imprisonment on him.  She pointed to the delays and the toll that they have taken on members of the family and in particular the health problems of his wife and daughter, matters to which we have regard, although we were not referred to them in open court.  

15.  We have considered the points made on behalf of the Solicitor General and the respondent and we accept the Solicitor General's broad submission on the approach to sentence.  Although each of the sentences was proper when regarded as individual sentences, by making them concurrent without increasing the sentence on the most serious charge, the conspiracy, so as to reflect the overall seriousness of the sentencing, the Recorder passed a sentence that did not fully reflect the seriousness of the offending.  

16.  However, in view of the matters urged on the court by Ms Pennington, we are not persuaded that the overall sentence was unduly lenient in the particular circumstances. Accordingly, we decline to interfere with these sentences.