Victim Personal Statements and categorisation in sentencing exercises
June 2, 2020
Alexandra Sutton considers the probative weight of victim personal statements with reference to the recent case of Karan Panta [2020] EWCA Crim 633
Whether defending or prosecuting, victim personal statements (‘VPS’) are of significant importance. In some cases categorisation within the guidelines can turn on the composition of a VPS – without one it can feel as though there are gaping holes in the sentencing exercise. Hearings are frequently adjourned to obtain them, prosecutors are questioned when they have not been provided, and submissions by both parties are influenced by their contents. The VPS system has been in place for over two decades, and as Holroyde LJ observed in R v Chall 2019 EWCA Crim 865, the VPS “gives victims a voice in the criminal justice system and provides an effective way of ensuring that the sentencer considers, as section 143 of the 2003 Act requires, the harm caused.” However, by its very nature the VPS is an unpredictable document – some are concise, some wide-ranging, some make untested assertions, some are limited to incontrovertible fact. In the recent case of Panta, the Court of Appeal considered the extent to which a judge is entitled to rely on a VPS when passing sentence.
Facts
The facts of Panta were straightforward – the appellant was a cricketer who lodged with the victims in their family home whilst playing for a local club. He did not pay for food and board, relying on the victims’ hospitality. Whilst living with the victims, the appellant applied for several short-term, high interest loans in his host’s name – the total sum borrowed was £7,300. The appellant made full admissions and was convicted of fraud by false representation after pleading guilty in the magistrates’ court.
Categorisation
In sentencing the appellant the Judge addressed himself to the Definitive Guideline on Fraud, Bribery and Money-Laundering. Under the guideline, harm is referenced to by loss (actual, risked or intended). This case sat at the lower end of Category 4 (loss between £5000 and £20,000 with a starting point of £12,500).
Regarding culpability, the three categories are as follows:
Category A
- Leading role in group activity
- Exertion of pressure / influence on others
- Abuse of position of power, trust or responsibility
- Offending is sophisticated or involves significant planning
- Deliberate targeting on basis of vulnerability
- Conduct over sustained period of time
- Large number of victims
Category B – cases falling between A & C / cases with factors of both which balance out
Category C
- Defendant involved through coercion / exploitation
- Opportunistic / very little or no planning
- No motivation of personal gain
- Involvement is peripheral
- Limited understanding / awareness of fraudulent activity
In Panta, the victims provided a statement explaining the emotional and financial impact of the offending, which the Judge described as “harrowing reading”, noting that the offending had a “fundamental and high impact” on them. He observed there was some planning and made passing reference to an abuse of trust, but relied heavily on the VPS, acceding to a Crown submission that “there should be a jump, a leap in the sentencing guidelines to 3A.” The appellant was sentenced to 20 months imprisonment.
Appellant’s Submissions
The appellant argued that the Judge had erred in elevating the case to Category 3A, accepting that the Judge was entitled to aggravate on the basis of an abuse of trust, and the impact on the victims, but submitting that the decision to move the case from Category 4 to Category 3 regarding harm was not the appropriate route. The appellant argued a starting point of 12 months imprisonment (Category 4 giving a range of 26 weeks to 3 years custody). The appellant further argued that there was little planning and little awareness of the damage that would be caused to the victims (influence on credit rating, for example), and relied on the appellant’s young age, good character, and potential future as a professional cricketer.
Judgment
The Court concluded that the Judge had taken the VPS as the most aggravating feature in his decision on sentence. Guidance on the VPS is given in the Criminal Practice Direction on “Victim Personal Statements” (see Archbold (2020) page 691 paragraph 5A-302) and the issue was previously considered in R v Perkins [2013] EWCA Crim and Chall (above). With those cases in mind, the Court reviewed the VPS provided in this case, observing that, whilst the offence clearly had a deleterious effect on the victims’ lives, and whilst the Judge was entitled to attach proportionate weight to that, it was not clear how the Judge had elevated this sentence so steeply. It was further noted that there was no clear reasoning for such adjustment in the sentencing remarks. The Court determined this to be a Category 4 case, with culpability falling between B and A. The sentenced was accordingly reduced to one of 12 months’ imprisonment.
Comment
As per Chall and Perkins, in Panta we are reminded of the principles that must be taken into account when assessing a VPS. The court should proceed on the basis of facts about which a judge can be sure, and assessment of emotion should be dispassionate. In this case it was specifically noted that, “if a judge is going to rely upon a statement of this sort to justify a leap in the categorisation of a sentence then that needs to be explained in the sentencing remarks.” From the practitioner’s perspective, it is worth noting that in this case, whilst the Judge plainly took the content of the statement as a stark aggravating feature, it was accession to a Crown submission that led him to move this case up the guideline. Accordingly, advocates also need to be cautious when drawing judicial attention to the relationship between the contents of a VPS and the relevant guideline.
Alexandra Sutton was called to the Bar in 2017 and became a tenant of Exchange Chambers in October 2018 following the successful completion of her pupillage. She has since developed a thriving criminal and regulatory practice, acting for both prosecution and defence in a variety of matters.
