A victimless crime? It makes no odds.


An example of how crunching the numbers can make a substantial difference to your client.

At the end of February I attended court with my supervisor Daniel Benjamin, who was defending in a trial concerning one count of Fraud. The Defendant was alleged to have taken £100,000 from his employers, a regional bookmakers, by abusing his position. This was alleged to have occurred on 68 days over a period of 17 months.

The Defendant worked as a cashier, with part of his role being taking money from customers and loading the equivalent amount onto Fixed Odds Betting Terminals (FOBTs) using a computer behind the tills. He was accused of pocketing the money received from paying customers for himself. The Defendant also had a duty to fill in a weekly balance sheet, including the figures from the FOBTs end-of-day printouts. He was further accused of doctoring the figures to cover up the discrepancies between the machine printouts and the actual amount of money in the till.

The Defendant’s defence was that he had loaded electronic credit onto the machines without paying for it himself, which was for his own use whilst he was not otherwise engaged in running the betting shop. However firstly he denied taking any of the customer’s money for himself, and secondly he never made or intended to make any gain from the use of the machines – as he would purposely lose all of the credit remaining before returning to his duties. It was simply to keep him entertained whilst the shop had no customers.

The Law

Section 4 of the Fraud Act 2006 is as follows:

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

(a) occupies a position in which he is expected to safeguard, or not to act

against, the financial interests of another person,

(b) dishonestly abuses that position, and

(c) intends, by means of the abuse of that position —

(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.

The Defendant accepted parts (a) and (b) but denied both aspects of part (c).

Case Preparation

In conference, the Defendant stated that he would load the credit he would use himself in amounts of £200 (the maximum amount that can be loaded at a time) and load this amount three or four times in quick succession.

The Crown disclosed a schedule of the discrepancies alleged, the weekly balance sheets and the electronic data of credit loaded onto the FOBTs. After analysing the data, it was found that these discrepancies were almost all in rounded numbers and in denominations of £200.

Further to this, it became evident that groupings of £200 were uploaded within seconds of each other. These groupings not only occurred on all the days the fraud allegedly took place, but also the amounts tallied with the discrepancies that the Crown had set out in their schedule.

At court

The Prosecution recognised that the Defendant’s version of events was a credible one. However, they also recognised that the Defendant had accepted abusing his position. Therefore, an alternative count of obtaining services dishonestly (s11 Fraud Act) was added to the indictment. This was accepted on a basis of plea.

This charge is not one covered specifically in any sentencing guidelines, but Judges can be assisted by using the Fraud or Theft Sentencing Guidelines where appropriate. Otherwise, the principles outlined in the Criminal Justice Act 2003 apply – to look at the Defendant’s culpability and the amount of harm suffered.

Mitigation

What had the Defendant gained from his conduct? It was submitted that he had received the same enjoyment that a paying customer would from the use of the machines. The Defendant had written the correct figures in the weekly balance sheets for how much money had been received, and had therefore not misled his employers about profits. He never intended to make a gain from the bets. It was argued therefore that the Fraud sentencing guidelines, which before the alternative count was added had the Defendant looking at a starting point of 4 years imprisonment, were not relevant, and a minimal sentence was appropriate.

This was also not akin to a charge of making off without payment. If someone eats at a restaurant and leaves without paying, they have deprived the restaurant of the table that could have been used by paying customers, and the restaurant will not recover the food eaten by the Defendant. In this case, no customer had been deprived of the use of the FOBTs and the machines were not serving a product of finite amount.

As the alternative count had only been added on the day of trial, the Defendant was entitled to full credit for his plea. The Defendant was a man of previous good character, and was remorseful about his dishonest behaviour. He had been immediately dismissed from his employment when the discrepancies were discovered. He was also now suffering from a number of medical conditions meaning that he would never work again – which also meant that an unpaid work requirement would be inappropriate.

The primary submission was that the custody threshold was not passed, so if no community order could be imposed the court should consider a fine or even a conditional discharge. The secondary submission was that if the custody threshold was passed, a suspended sentence without community requirements should be imposed.

Sentencing

The Judge set out the aggravating factors as being the period of time the activity took place and the fact that the Defendant was in a position of trust, particularly due to handling the company’s money. Regardless of the Defendant’s actions not causing any financial loss, it was said that the abuse of position must be marked as a matter of public policy, to discourage people in similar positions, particularly where handling money, from losing their integrity. A suspended sentence of 3 months was given, reduced to 2 months for his early plea.

Conclusion

This Defendant was initially facing a lengthy custodial sentence. He ended up walking out of court with a short suspended sentence. This was because of the analysis that was undertaken on the large amounts of data disclosed, which meant it could be argued that minimal harm had been caused and the Defendant’s culpability was low. It is difficult to think of a similar situation where the only gain from an abuse of position is that of enjoyment.

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