Neutral Citation Number:
[2009] EWCA Crim 1861
Case No: No: 200901812/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 18 August 2009
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE TREACY
MR JUSTICE KING
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R E G I N A
v
COLIN BASIL WELLICOME
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Mr I Krolick
appeared on behalf of the
Appellant
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J U D G M E N T
1.
MR JUSTICE TREACY: This appellant is Colin Wellicome. On 2 March 2009 at Lewes Crown Court he pleaded guilty to conspiracy to defraud contrary to common law. That was a plea on rearraignment. He was sentenced by His Honour Judge Tain on 30 March 2009 to a term of three years' imprisonment. There was a co-accused involved in the conspiracy, a man called Foster, who had pleaded guilty at an earlier stage to the conspiracy and who was sentenced to 12 months' imprisonment.
2.
The facts are these. The two conspirators both worked for an insurance company, SUML. This appellant worked in a senior role as a claims manager and Foster was employed on a consultancy basis as a claims technician. Their role was the handling and management of motor insurance claims.
3.
Between early July 2003 and 20 September 2006 they conspired to defraud SUML and those within the underwriting industry of a considerable sum of money. The appellant's fraudulent activities involved round £276,000 and Foster's within the conspiracy involved about £180,000 of the higher sum.
4.
From July 2003 the pair authorised and released fraudulent payments on motor insurance claims and payments were made to firms which had been set up by Foster. The payments were designed to appear as if the firms had provided services to SUML in connection with claims files. The claims files were altered by the conspirators in order to add additional fictitious claimants to whom payments were made. This appellant then authorised or released the payments.
5.
SUML provided motor insurance through a number of insurance brokers and decided to out-source most of the day to day administration and handling of its business to a company called Elite Instant Management based in Brighton. It was decided that the appellant would spend most of his time at Elite's offices. He was very experienced in the insurance industry and was highly regarded by SUML as one of their most trusted members of the management team. He was registered with Lloyds as a person considered fit and proper for his role. In his capacity as claims manager he had to manage and negotiate insurance claims sometimes valued at several millions of pounds.
6.
Because the volume of work being handled by him grew, he required additional assistance and he put forward his co-conspirator Foster's name. Foster himself was an experienced insurance claims technician who worked as a consultant on a self-employed basis. He was paid a daily rate for the work which he would carry out. He too was based at Elite's offices in Brighton.
7.
The offences came to light in October 2006 and the appellant having been arrested declined to comment in interview.
8.
In passing sentence the judge observed that this was a conspiracy which had lasted for some three years. He said he had taken account of the cases of
Barrick
and
Clark
.
9.
The appellant is 51 years of age. He is a man of previous good character. This, of course, is not uncommon in this class of case and indeed enables those who wish to offend in the way in which this appellant did to hold senior positions of trust.
10.
There were reports available to the sentencing judge. A pre-sentence report referred to the appellant's previous good character and also his poor health of which more in a moment. The writer of that report said that the appellant lacked victim empathy and that he tended to minimise the seriousness of his conduct.
11.
There were a number of character references which were entirely favourable to this appellant.
12.
The submission made to us is that the sentence passed was manifestly excessive. In particular it is said that insufficient account was taken of this appellant's medical condition and the difficulties which he would experience in prison as a result of it. Furthermore, it is suggested that there is a degree of disparity with the sentence imposed on Foster and that the judge started from too high a starting point having regard to the guideline cases.
13.
This was a substantial conspiracy involving a serious breach of trust committed out of greed by a person in a senior position. The fraud was committed over a substantial period of time. It generated large sums of money for the conspirators and corresponding loss to the victim. None of the money was recovered by the time of sentencing. To make the conspiracy work, false accounting was necessary and a degree of craft and sophistication was needed. There was consequent reputational damage to SUML and there would undoubtedly be increased costs to the public by reason of the commission of this fraud. This appellant was in a more senior and trusted position than his co-accused whom he had recruited to the business and to the fraud and whom he had corrupted. This appellant was involved in a larger sum of money than his co-accused, and the judge, in our view correctly, regarded him as more responsible and indeed the prime mover and driving force of this fraud. We note, also, the co-accused Foster having pleaded guilty was prepared to give evidence against this appellant who had not pleaded guilty at the same stage as Foster.
14.
We say at once that arguments based on disparity with Foster do not impress us. The judge had good reason to differentiate between the two men.
15.
Like the single judge, we take the view that the truly arguable point in this appeal relates to the appellant's health. The sentencing court had a report from Dr Chalmers. That report is dated 24 March 2009. Dr Chalmers is a consultant neurologist and his report includes the following passages:
"I can confirm that Mr Wellicome is an outpatient under my care at Worthing Hospital. He has idiopathic Parkinson's disease, and has been under my care since 2003. He was last seen in my outpatient clinic on 12 December 2008 by my neurology nurse specialist. At present he takes a combination of medication [and then details are given of a number of different drugs].
He has significant physical symptoms despite treatment. He has significant involuntary movements. He has occasional periods of marked immobility and loss of arm function. He has some difficulty with speech, which can make it difficult for him to communicate, particularly when he is under stress.
...
Clearly, a custodial sentence would have significant effects on Mr Wellicome's Parkinson's disease and cortial Lewy body disease. There is a very clear interplay between the physical and cognitive symptoms in patients with Parkinson's disease and intercurrent stress, and I think it is very likely that his physical and cognitive symptoms would deteriorate in a prison environment. I would also be concerned that it would be difficult to manage his physical and cognitive symptoms in a prison environment, and that his ability to access therapies including physiotherapy would be very limited."
16.
The author of the pre-sentence report put forward similar concerns.
17.
We now have available to us a report dated 15 July 2009 from Dr Robertson at HMP Ford where this appellant is currently serving his sentence. Again, so that the judgment of this court may be properly understood, it is necessary to quote reasonably extensively from that report:
"He is significantly disabled by this progressive neurological disorder and it seems likely that his time in prison has contributed to his further physical and mental deterioration. ... He currently takes five different drugs to try and control his Parkinson's with limited success. There are two significant problems with his Parkinson's at present. Firstly he has significant periods of freezing when he is unable to move or moves with great difficulty. This is a difficult problem at night when needing to go the bathroom which he requires to do on two to three occasions each night. As part of this, he also has significant difficulties initiating movement. The second major problem is with significant involuntary movements when his arms will either rise or jerk out in an uncoordinated manner. This obviously makes collecting his food and eating, as well as other day to day activities of self-care, particularly challenging. Prison would certainly appear to have added to his stress and anxiety levels which also has a knock-on effect on his physical symptoms. ... In the community he was having physiotherapy either on a weekly or fortnightly basis and he has had no physiotherapy since his time in prison again with an adverse effect on his physical functioning. Due to his Parkinson's his speech can become quiet and at times difficult to follow which has meant that he tends to have difficulty interacting with staff and inmates, making him more socially isolated."
18.
Dr Robertson goes on to indicate that arrangements are being made to ensure that there is some physiotherapy available for Mr Wellicome whilst he is in custody at HMP Ford.
19.
His report concludes in this way:
"I refer to Dr Chalmers' report of 24 March 2009 who suggested that a custodial sentence would be likely to result in deterioration in his illness and I think that certainly that has been the case."
20.
Although the sentencing judge gave weight to Dr Chalmers' report, this latest information shows in a striking way that this appellant's condition has been exacerbated by his incarceration and that for him life in prison is considerably more onerous than for others in better health. Had this material been before the sentencing judge we have no doubt that a greater discount in sentence would and should have been made.
21.
In all the circumstances of this case, we feel that the judge was entitled to take a starting point of around six years. That may be at the upper end of the range but we are not persuaded by Mr Krolick's argument that that itself can be criticised. Credit is then to be given for a relatively early plea of guilty and allowance is to be made for this appellant's illness.
22.
After due consideration of all those factors we have come to the conclusion that the appropriate sentence in this case is one of two years' imprisonment. We substitute that term for that imposed below and to that extent this appeal is allowed.