Please Help/advise...

[Adz786]

I've been charged with fraud by misrepresentation . I have never been arrested before or have a criminal record. I have gained extra income of about £5000 from my previous employer. I pleaded guilty and apologised for my unethical actions. Please can someone advise my likely outcome may be?

[trt]

I think you will have to give more details of the misrepresentation, that you have been charged with, unless someone can answer your Q without.

[Buenchico]

See page 281, et seq, here:
https://www.sentencingcouncil.org.uk/wp-content/uploads/MCSG-April-2017-FINAL-2.pdf

You'll see that 'Abuse of position of power or trust or responsibility' (which is relevant when defrauding an employer) can take 'culpability' into the 'High (A)' category, as can 'Fraudulent activity conducted over sustained period of time' (i.e.when it's not just a 'one-off' fraud).

You'll also see that £5,000 is right on the boundary between 'Category 5' and 'Category 4' when it comes to assessing 'Harm'.

If the court sees your offence as 'A-4' (based upon the table on page 284), you'll further see that a custodial sentence is inevitable. The court, might, however, see the offence as 'A-5', 'B-4' or 'B-5', making a custodial sentence far less likely. (Note that an early guilty plea can see the custodial sentences there cut by a third, or non-custodial sentences reduced in their severity).

However (and here's the really important bit), nothing there suggests that a custodial sentence of greater than 2 years could be passed. That means that the court would have the option to pass a SUSPENDED custodial sentence. The likelihood of that happening is greatly increased by the fact that it's your first offence.

My guess (and it can be no more than that) is that you'll either be given a Community Order (typically involving a period of unpaid work) or, possibly more likely, a suspended prison sentence. Based upon reading countless court reports (and having done a bit of court reporting myself) I very much doubt that you'll be facing an immediate custodial sentence but it can't be totally ruled out.

[Adz786]

Basically I worked for an employer and me and a colleague used a recruitment agency which was a bogus/fake company to fill jobs at my current workplace. We split the fees 50/50 between us. Now this agency I believe was my colleagues relatives company or his ex wife's company. The invoices came directly to him and he would pass them to hr and finance department for it to be paid. I hope that makes sense and more clearer. Thanks

[EDDIE51]

^ what I don't understand is how you got away with the fact that the bogus employees you recruited can never have turned up to work. So how did the fake employment agency get paid. There has to be more to this than you are telling us. Did you fake the 'employee's' time sheets and references as well? I work for an employment agency, we have to get our time sheets signed after we have completed the work.

[Peter Pedant]

yeah off the top of my pretty head
( chris ' BC contribution is worth a re-read more than once)

you were done on s2 and I thought vulnerability was s4 of the Fraud Act 2006
I dont think your employer is gonna count as a vulnerable person

I have to say that I didnt think you got the slammer under ten thou.

You have also done the AAT book keeping courses - AAT hopelessly confuses unethical and criminal - they fail to see that nothing that is criminal can be ethical. You havent behaved unethically but criminally and it would be better ( admission and apolz etc) if you took that into account. I quite liked "extra income" - blimey I hope you paid tax on it! - instead of proceeds of crime

s2 is an interesting section - a conduct crime - all you have to do is misrepresent with a view to causing a loss - and not actually take home moolah or make anything. That clearly doesnt apply to you

I have just made a mess of Level 3 (you'll probably know exactly what I mean) and I think you can see why

and so.... you should reflect further in your conceptual framework what you have done ( actually you have permanently cashed in your chips on any job of trust or handling money or petty cash of any kind)

I need to retake Level 3 and say more of what the examiners want rather than what the Law says

and AAT needs to rewrite ( I'll help, I;m free !) its professional ethics module on which you are clearly relying.

bit of a sunday mornings work really innit ?

anyway good luck ( you ll need it) I think you will get a suspended sentence

[Peter Pedant]

sorry thread seems to have grown since I started typng

thanks for the details erm which I didnt need on a simple fraud
I am amazed it worked at all TBH

at our local childrens hospital ( the hero hospital that one)
a clerk noticed double invoicing and the medical agency boss went to prison erm oops you dont want to hear than and I cant remember how much for ( lots)

Jesus - how many fraudsters have we all met ?

[Adz786]

Just to shed further light. These were real people that did turn up for work. I actually work in recruitment myself for this previous employer as an internal recruiter. Now I hope that makes sense.

Also I wanted to add will I be charged on the basis of the money I took home or the total loss to my previous employer?

Thanks

[EDDIE51]

^ So it was only the agency fees you were taking?
You definitely need a skilled lawyer on this. A clever lawyer could possibly make out a case that you just concealed the ownership of the employment agency. After all if you did not use the 'fake' employment agency your company would have paid the same amount in fees to a 'real' agency! At least that is how it now looks to me from your last answer.

[Zacs-Master]

Section 2 Fraud Act 2006 sets out the framework of the classic fraud offence. The offence usually consists of some sort of dishonest statement made to gain something or so that someone else makes a loss. This offence is one that will often apply to an offence committed in business. The four necessary elements that must be proved in order to result in a conviction are:

A representation must be made
The representation must be known to be false
The representation must be dishonestly made
The person making the representation must intend to gain something, or intend that the person receiving it loses something

Looks like you qualify on all counts. Would have to be a v good barrister to argue you weren't aware of any of the above.

[Adz786]

Sorry to ask again but what do you think my likely punishment to be? Worst case/best case.

[Buenchico]

Your explanation of events confirms that 'culpability' with classed as 'A' (High). That means that it's either an 'A-4' or 'A-5' offence.

I stand by my original post, in that a custodial sentence is likely but, because it's your first offence, there's a reasonably good chance of it being suspended.

My best guess is a 12 month prison sentence, suspended for 2 years (but I'd still advise packing a bag, just in case the sentence isn't suspended).

[EDDIE51]

^^ Good advice, a lot of people don't realise that if you are convicted and get a prison term you are taken straight from the dock into the cells under the court room then to jail. You are supposed to be allowed one phone call but it often does not happen!

[Buenchico]

Thanks, Eddie.

If you do pack a bag, Adz786, do NOT give it to a friend or your solicitor to look after while you're in the dock. They won't be able to get it to you if you end up in the cells. Try to hold onto it. If you're forced to let go of it, give it to a security guard or court official.