[2025] EWHC 1956 (Admin)

Fecha: 28-Jul-2025

VII - Sentencing discussion

VII - Sentencing discussion

27.

It is agreed between the parties that the Judge used the wrong domestic sentencing guidelines for the AW2 offences. However, the Judge cannot be criticised in this. She made her analysis on the basis of the submissions of counsel. Before me, the appellant’s counsel frankly accepted that these submissions were made to the Judge on an erroneous basis. Be that as it may, the fact is that the Judge’s analysis of the AW2 offences was based on an importantly false premise. The correct categorisation of the AW2 offences is under 5B of the fraud sentencing guidelines. This entails a starting-point of medium level community order and a range from Band B fine to 26 weeks’ custody. The total fraud and attempted fraud under AW2 is agreed to be £2635.

28.

However, the sentencing guidelines specify indicative sentencing for one offence. Here there are two. There are two obvious methods that a court may legitimately use to sentence for these two offences:

(1)

making one the lead offence and uplifting for the other while making its sentence run concurrently; or

(2)

by the imposition of consecutive sentences.

29.

The point is that whichever route is taken, the sentence should be the same. It is a question of construction not outcome. The overall sentence should be adjusted for principles of totality. The court must impose a sentence that reflects the totality of the offender’s culpability and harm, but must adjust it to avoid double punishment or disproportionality.

30.

These are distinct offences against different victims. In such circumstances, there would be nothing objectionable in passing consecutive sentences with the overall sentence discounted to take totality into account. On either analysis, the sentence will be meaningfully higher than for a single offence. An offender cannot commit further crimes with impunity. It seems to me that one cannot simply aggregate the total fraud as if it were one offence with a loss of just over £2500 and a resulting starting-point of medium community penalty. There were two offences not one with different targeted victims. After a failed attempt at fraud, the appellant persisted in his fraudulent ambitions and succeeded. I regard this as a seriously aggravating feature.

31.

The completed fraud offence is likely to be the lead offence with the attempted fraud made to run concurrently, having uplifted the lead crime. In the 5B category, the starting-point is based on harm of £2500. Here the harm for the completed fraud was £1000, which would require a notional reduction in starting-point. However, several aggravating factors exist:

The offence was committed while the appellant was in prison and “illegally” used a mobile phone while in prison. This is a seriously aggravating factor;

ii.

This was group offending with multiple victims, both aggravating factors;

iii.

The offence was committed following the more serious fraud for which he was convicted and sentenced to 15 months’ custody, another aggravating factor (in the United Kingdom it constitutes a statutory aggravating factor as a previous relevant offence);

iv.

The attempted fraud would then be added. That attempted fraud has aggravating factors as well: once more committed while in prison; again an act of group offending. This must result in a further uplift in sentence.

It is not known what mitigation the appellant may have. One proceeds on the basis of conviction and so there is no reduction due to guilty plea.

32.

Putting all this together, I judge that several conclusions are clear:

The AW2 offending cumulatively crosses the custody threshold. Here is a persistent fraudster who is not deterred from criminal offending by the fact of his incarceration, instead using his detention as another opportunity to commit fraud. Having failed with his first attempted fraud from prison, undeterred he continued to offend and succeeded in his later prison fraud. I am clear that with this background neither a fine nor community sentence would be justified.

ii.

It is possible under domestic sentencing guidelines to move beyond the upper limit of a particular offence category, especially if there are aggravating factors and/or multiple offences. Both these features are present in the AW2 case.

iii.

I judge that a sentence of at least 6 months’ custody, the upper limit of 5B, is the “likely” outcome of the sentencing exercise as an aggregate sentence to reflect all the appellant’s AW2 offending. There is a real possibility of moving above the 6-month upper limit. But I proceed on the basis of a likely sentence of at least 6 months’ custody, emphasising that as Swift J noted in Vascenkovs at para 10, I do not attempt a “precise calibration”, but assess the general outcome.

iv.

In that, I am not persuaded that the “age of the offences”, as relied on by the appellant, is significant. The Judge said at para 118 that offences are “old”, alleged to have been committed in “2020 and 2021”. The domestic guidelines on delay make it plain that delay attributable to the culpable conduct by the offender significantly reduces or eliminates any reduction that would otherwise result. For example, the Sentencing Council’s General Guidance: Overarching Principles (Step 2: personal mitigation et cetera) states that “Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.” (original emphasis)Here the delay is principally due to the appellant’s fugitivity in placing himself beyond the reach of Lithuanian justice. It is unclear what “detriment” has been caused to him, as commonly understood by the sentencing guidelines.

I find that the mitigation of his personal relationships in the United Kingdom to be of limited value. The relationships were developed principally after he fled Lithuanian justice, while noting that he appears to have met his partner before he arrived in the country. In any event, he developed these personal relationships after he committed the AW2 offending and in full knowledge of his fugitivity, understanding that he may have to be returned to Lithuania.

33.

I cannot accept the submission on behalf of the appellant that the sentence should be “2 months’ custody approximately” at a maximum or “more likely” a community penalty. I cannot accept the temperately framed submission of counsel that “2 months’ custody” is a “perfectly respectable sentence to end at”.

34.

With a notional sentence of 6 months’ custody, and being within the suspended sentence order (“SSO”) limit of two years’, the court would be bound to consider an SSO. The guidance on SSO domestically helpfully provides a table with factors for and against. I examine these now:

Factors indicating appropriate to suspend sentence:

Realistic prospect of rehabilitation: there is no evidence of such a prospect. Indeed, the appellant is a recidivist fraudster and persistent and serious criminal offender, committing further offences from prison;

ii.

Strong personal mitigation: none has been put before the court, save the personal relationships developed while the appellant has been evading Lithuanian justice;

iii.

Immediate custody will result in significant harm to others: here to his partner and her children. However, the children are not his biologically; his relationship with their mother has been of relatively short duration; they are not married and have been living apart in excess of a year due to his remand in custody.

Factors against suspending:

Risk/danger to the public: the appellant is a persistent offender, seeking to defraud a variety of victims. He presents a risk of obvious and significant harm to the public by his criminality. The conviction offence is a serious matter for which he received a 15-month custodial term. He has continued offending targeting other innocent members of the public. His previous offending in the United Kingdom is very grave and he received a custodial sentence in excess of 9 years’ custody for firearms-related offences. He was returned to Lithuania from this country to serve the balance of that sentence and then while in prison in Lithuania committed the offences in AW2.

ii.

History of poor compliance with court orders: he continued committing frauds, if the allegations are proved, while in prison, and using a mobile phone in prison illegally. He then fled Lithuania and has been a fugitive from Lithuanian justice in this country to evade the judicial authorities in Lithuania.

iii.

Only immediate custody appropriate: because of his antecedents and pattern of persistent offending and fraudulent offending, I am quite satisfied that only a sentence of immediate custody is appropriate – certainly, it is “likely”. His antecedents are significant in assessing statutory aggravating factors. The appellant is not a man of good character in the UK. In 2015 he was sentenced to a term of imprisonment for 5 years and for 112 months, He says he was sentenced to 9 years and 4 months and after serving one year was transferred to Lithuania to serve the rest of his sentence. He has a has two previous convictions in Lithuania. The first was on 27 September 2010 for an offence of violation of public order for which he received a community order. On 17 May 2011, for an offence of robbery he was sentenced to two years one month's custody. In Finland on 13 February 2014, for an offence of robbery, he received a sentence of two years six months’ custody. Therefore, the appellant has committed offences in multiple jurisdictions and received prison sentences in three different countries for serious offences.

35.

For all these reasons, I am sure that the factors against suspending sentence decisively outweigh those in favour. Therefore, I accept the respondent’s submission that an SSO is “highly unlikely”. Section 21A(3)(b) requires consideration of “the likely penalty that would be imposed if D was found guilty of the extradition offence”. The result of the sentence analysis, within the limitations noted by Swift J, is that the appellant would have imposed the penalty of a custodial sentence of significant duration for the AW2 offences, in my judgment around or in excess of 6 months’ custody.

36.

At the point of this appeal hearing, the appellant will have accumulated remand time relevant to AW2 of 2 months and 8 days. The appellant submits that he will have served the equivalent of a 4-month custodial sentence. This claim must be carefully examined. The Supreme Court has restated the position recently in Andrysiewicz v Poland [2025] UKSC 23. The court said at para 78:

“[b]ecause (save in rare cases) a court in this jurisdiction should not embark on predicting the likelihood of the outcome of [an early release application], the bare possibility of early release on licence adds “little weight” in determining whether extradition is a disproportionate interference with article 8 ECHR rights.”

37.

The court continued at para 80:

“80.
We envisage that a rare case is confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability: (a) that the requested person would be released under article 77 of the Polish Penal Code upon an application; (b) as to when that release would take place; (c) as to what the probation period and conditions attached to that release would be; and (d) that the inability of a court in this jurisdiction to provide for such a probationary period and to attach such conditions would not adversely affect the interests of the offender or of the public.”

38.

Using the Supreme Court’s authoritative rubric, here there is no “agreed or uncontested evidence” sufficient to demonstrate to “an overwhelming probability” (a) that the appellant would benefit from early release under Lithuanian law; (b) when that release would take place; (c) whether there would be a probation period and attached conditions; (d) that the inability of this court to provide (direct) a probation period with attached conditions would not adversely affect the public interest with the appellant release unsupervised. Put another way, the appellant fails each limb of the Supreme Court’s “rare case” test.