[2015] HCJAC 68

HCA/2015/1239 /XC

Lord Justice Clerk

Lady Smith

Lord Brodie






following upon a reference by the Scottish Criminal Cases Review Commission







Appellant: McCall; John Pryde & Co (for Jim Friel & Co, Glasgow)

Respondent: Brown QC AD; the Crown Agent


7 May 2015

[1]        On 5 November 2013, after a trial at the Sheriff Court in Glasgow, the appellant was found guilty of a mortgage fraud committed in 2002, whereby he obtained £78,500 from the Bank of Scotland in order to buy a property in Ruchill.  He was also convicted of a contravention of section 327(1)(d) of the Proceeds of Crime Act 2002, when, in 2007, he transferred the free proceeds of the sale of that property to his partner to enable her to purchase another property, known as Hayhill, in Milngavie.  The sheriff sentenced him to 18 months imprisonment for the mortgage fraud with a consecutive 3 years imprisonment on the statutory charge. 

[2]        The appellant’s offences were interlinked with those committed by his sister and his partner, both of whom were also convicted at the same trial.  The appellant’s own fraud had been committed when he had been a prisoner in Glenochil, serving a 7 year sentence for concern in the supply of drugs.  He successfully pretended to the Bank of Scotland that he was earning £32,000 as a warehouse man and residing at an address in Glasgow.  In 2007, the property in Ruchill was sold and the free proceeds, amounting to about £107,750, were transferred by the appellant to assist his partner in the purchase of Hayhill.  Meantime, previously that year, his sister, who had been working as a home carer and earning £20,000 with Glasgow City Council, had obtained a loan of £127,890, secured over her flat in Bell Street.  She had done so by pretending that she was the “head of care” with the Council, earning £85,000 a year and deriving a further £10,000 from investments.  She transferred £124,755 of that money to the appellant’s partner, again to help with the purchase of Hayhill.  The appellant’s partner managed to secure a mortgage of £975,000 to pay the balance due in respect of Hayhill, which cost about £1.3 million, by pretending that she was an executive of a company which made about £300,000 net profit per annum; the truth being that the net profit of the business had only between £12,000 and £14,000. 

[3]        The various frauds had not caused any loss to the financial institutions concerned.  The property at Hayhill remained valued at a sufficient level to cover any potential losses.  The payments of the mortgage had continued to be paid.  However, the sheriff sentenced the appellant’s partner to 3 years imprisonment for the mortgage fraud and his sister to 1 year for the mortgage fraud and 2 years for a Proceeds of Crime Act offence; these latter sentences being imposed concurrently.

[4]        The appellant appealed against conviction and sentence.  His appeal against sentence was refused at the stage of sift.  His appeal against conviction was refused at a full hearing on 20 November 2014 ([2014] HCJAC 124).  At that stage, the co-accused’s appeals against conviction were also refused, but those against their custodial sentences were successful.  By the time of that decision, each had served 132 days (ie about 5 months) in prison.  Both co-accused had their sentences of imprisonment quashed and Community Service Orders of 200 and 250 hours were imposed upon the sister and partner respectively.  Particular focus had been placed on Hughes v HM Advocate [2014] HCJAC 74, where substantially greater mortgage frauds had resulted in a non-custodial sentence, albeit in that case a fine of £45,000, for a first offender. 

[5]        The Scottish Criminal Cases Review Commission considered all the circumstances and looked at Hughes v HM Advocate (supra); Birrell v HM Advocate (unreported), HCJAC, 27 March 2009; and Stewart v HM Advocate 1998 GWD 33-1701.  The Commission considered that the sentence imposed upon the appellant was broadly consistent with sentences imposed in other similar cases.  However, having regard to the sentences which were substituted on appeal in respect of the two co-accused, the Commission considered that a miscarriage of justice may have occurred, having regard to the principle of comparative justice.  They referred the case to this court accordingly.  In so doing, they recognised the distinction between the appellant and his co-accused.  The appellant had a number of previous convictions.  These included not only the drugs offence, but also 7 convictions for dishonesty between the years 1985 and 1992; although the last of these was for theft of a car, attracting a fine of only £300.  Some of the convictions had resulted in custodial sentences, but the last one was in 1990, when 60 days was imposed, again for the theft of a car.  The appellant also had road traffic convictions from 1992 to 1994.  He was considered to be at medium to high risk of offending in terms of the Criminal Justice Social Work Report. 

[6]        It was first contended that the period selected by the sheriff in respect of the mortgage fraud was itself excessive.  Although it was accepted that the appellant’s position was distinguishable from the co-accused in light of his record, especially the drugs offence, and the fact that the appellant had committed the offence from prison, it was pointed out that the purchase of the plot, which in due course became the Ruchill property, had been commenced prior to the appellant’s imprisonment; although, of course, the loan used to complete it was obtained after incarceration.  It was also stressed that the risk to the bank had been low, having regard to the degree of equity in the property.  All the mortgage payments had been made.  The loan had been fully repaid in due course when the property was sold. Secondly, following upon the Opinion of the court in the previous appeal, the sheriff had not adequately explained, nor was there any justification for, the imposition of a higher sentence in respect of the Proceeds of Crime offence, as distinct from the mortgage fraud.  Thirdly, in relation to the second charge, it was submitted that it was inappropriate to impose a consecutive sentence for that offence.  The only justification for doing so had been the passage of time, but that was not sufficient, nor was this a discrete criminal enterprise.  The sentences on the appellant’s sister had been concurrent at first instance and cumulo on appeal.

[7]        Standing the appellant’s record, and in particular the drugs conviction, only a custodial sentence was appropriate.  This distinguishes him from the position of the co-accused.  The court is unable to classify the 18 months selected by the sheriff as excessive for that offence.  On the second matter, standing the court’s decision in the previous appeal about the nature of the two offences, the penalty for the statutory offence should not have been greater than that on the first offence, at least without some substantive justification for such a course of action.  On the question of the consecutive nature of the sentences, this was appropriate in the appellant’s case, given the time which had elapsed between the two offences.  The statutory offence involved a separate property and a different offence.  In both of these respects the case is distinguishable from those of his co-accused, whose actions were all immediately concerned with the purchase of the property in Milngavie in 2007.

[8]        The court will therefore reduce the sentence on the statutory offence to one of 18 months.  Otherwise the appeal is refused.