Nicola Hayter [2019] EWCA Crim 1810

Nicola Hayter v R [2019] EWCA Crim 1810 was an appeal against sentence heard by the Court of Appeal (Lord Justice Irwin, Mrs Justice Andrews DBE and His Honour Judge Aubrey QC sitting as a judge of the Court of Appeal Criminal Division). The appeal was allowed in part and the sentence reduced.

The appellant had pleaded guilty on 3rd January 2019 in the Crown Court at Cambridge to one count of theft. She had originally faced charges including fraud and deception but the Crown accepted her guilty plea to theft alone on the second day of trial. She was sentenced by His Honour Judge Enright on 18th June 2019 at the Central Criminal Court to 42 months’ imprisonment. She appealed by leave of the single judge.

The appellant had been employed as account manager for Retrofit UK Limited from 2007. Between 2012 and 2016 she dishonestly used company credit cards for her own and her family’s day-to-day expenses and made overpayments to herself and to her daughter, who was a co-defendant. By 2014 her spending was described by the Crown as out of control. She paid the card balances from company funds. When arrested she falsely alleged that the company was acting maliciously and had itself engaged in tax evasion. The loss was difficult to quantify due to the nature of her role, the length of offending and the manner of the thefts. The prosecution initially put the loss at over £60,000 but accepted for sentencing purposes that it was in the region of £50,000, which was the defence position. The basis of plea, which was accepted, was that the activity had not begun fraudulently but had developed into a substantial course of theft.

The offending had a considerable impact on the company. Mr Hall, the managing director, provided a business impact statement describing the financial difficulties caused, including problems raising loans, being driven into overdraft with high interest charges, and being unable to use company premises as security. He valued staff time spent investigating the losses at over £21,000. The company experienced a significant breach of trust as the appellant had been in a position of high responsibility.

The appellant was 52 years old, married and of previous good character. She lost her subsequent employment following conviction. The pre-sentence report described her attitude to offending as evasive. She minimised her conduct, continued to claim her employer was aware of the money she was taking, and stated there had been no financial difficulty at the time. She was assessed as medium risk of serious harm to known adults and low risk to others if placed in a similar position. The report revealed that between plea and sentence the appellant had raised money through equity release from her house but, having lost her subsequent job, repaid it into the equity rather than making reparation for the losses.

The judge accepted the offending had not begun fraudulently. He emphasised the high degree of trust and consequent breach, describing the appellant as the “right-hand man” of the company boss, the four-year time span and the fact no money had been recovered. He had seen Mr Hall give evidence for a considerable period and was well placed to assess him and his evidence. The judge identified culpability as very high, the appellant having a leading role and high degree of trust. He said the losses at around £50,000 would place the matter in category 2 but the significant additional harm brought it into category 1. He took a starting point of four years six months’ custody. He gave credit for the guilty plea, despite it being entered after trial commenced, on the basis the indictment had been overloaded, applying around 22 per cent reduction for plea and personal mitigation to reach the 42-month sentence.

On appeal, Mr Witcher on behalf of the appellant properly accepted high culpability and that it was a category A case, but submitted it should have fallen into category 2 based on the amount stolen. He initially argued the harm was not significant enough to elevate the offending to category 1, but realistically added in the alternative that even if properly categorised as A1, there was no good basis to move the starting point from three years six months to four years six months’ custody.

The Court of Appeal agreed with the appellant’s submission. The court held that the starting point was too high and there was no proper reason for the upward shift. The categorisation of the case was entirely appropriate, particularly given the aggravating factor that the appellant not only was able to make significant reparation but had made preparations to do so, yet chose not to do so. The court quashed the sentence. It held that the starting point should have been three and a half years’ imprisonment. Applying a similar reduction for guilty plea and personal mitigation, the court substituted a sentence of 32 months’ imprisonment. In short, the appeal succeeded to the extent of reducing the sentence from 42 months to 32 months, the original starting point having been improperly elevated above the guideline range.