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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jones & Ors, R, v [2014] EWCA Crim 1762 (16 July 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1762.html Cite as: [2014] WLR(D) 319, [2014] EWCA Crim 1762

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16th July 2014

1. LORD JUSTICE PITCHFORD:

Introduction

2. On 6 and 7 June 2013, following a trial lasting some 4 months, before His Honour Judge Rhys Rowlands at Mold Crown Court, the jury returned verdicts of guilty of conspiracy to defraud against five defendants: Antony Lowry-Huws, Sheila Rose Whalley, Frank Darlington, Susan Lowry-Huws and Nicholas Jones. The essence of the fraud alleged was that the defendants, adopting different roles, set out to fund a very substantial property portfolio by deceiving mortgage lenders. We shall describe how the fraud worked in a moment.
3. The prime movers were the appellants Antony Lowry-Huws and Sheila Rose Whalley. Antony Lowry-Huws was sentenced to 7 years' imprisonment and disqualified from acting as a company director for a period of 10 years. Sheila Rose Whalley was sentenced to 6 years' imprisonment. She was also disqualified from acting as a director for 10 years.
4. The applicant Susan Lowry-Huws, Antony's wife, was said to be on the fringes of the conspiracy. She was sentenced to a suspended sentence order comprising 12 months' imprisonment suspended for 24 months, with an unpaid work requirements of 300 hours.
5. The appellant Nicholas Jones was a solicitor whose role was to conduct the conveyancing transactions by which the fraud was perpetuated. He was sentenced to 4 years' imprisonment. Frank Darlington was a building surveyor whose role was to provide inflated valuations both of freehold market value and rental value of the properties purchased. He was sentenced to 4 years' imprisonment.
6. A second surveyor, George Walker, was acquitted by the jury. He was the only defendant in the trial who gave evidence.
7. Each of those sentenced to a term of immediate imprisonment had spent time on remand subject to a qualifying curfew. In each case the judge ordered 46 days to count towards the custodial part of the sentence pursuant to section 240A of the Criminal Justice Act 2003.

Grounds of Appeal

8. In the case of the appellant Nicholas Jones the prosecution relied upon the evidence of an expert witness, Mrs Frances Silverman. In bare summary her opinion was that there were features of the transactions known to Nicholas Jones that were symptomatic of the fraudulent nature of the course of property transactions he was instructed to complete.
9. It was Jones' case that Mrs Silverman's evidence was in some respects ill informed and in others biased. The appellant Jones appeals against conviction on the ground that the judge wrongly refused to permit the defence to adduce evidence to the effect that Mrs Silverman had in earlier proceedings before the Solicitors Disciplinary Tribunal been criticised for a lack of objectivity.
10. Antony Lowry-Huws made no application for leave to appeal against conviction until leave had been granted to Mr Nicholas Jones. He now renews his application for an extension of time of some 11 months within which to appeal against conviction. He concedes that his application can have no purchase unless we were to allow the appeal of Nicholas Jones.
11. Susan Lowry-Huws appeals against conviction on the ground that in consequence of the acquittal by the jury of Mr Walker there was insufficient evidence before the jury upon which they could properly and safely convict of her involvement in a conspiracy with persons other than her husband Antony Lowry-Huws.
12. Sheila Rose Whalley and Antony Lowry-Huws have leave to appeal against sentence. The appellant Antony Lowry-Huws submits that the starting point for sentence for this conspiracy was set by the judge at too high a position. The appellant Sheila Whalley submits that her personal mitigation requires greater recognition than that awarded by the trial judge.

The Prosecution Case

13. Between 14 May 2003 and 26 June 2008 Antony Lowry-Huws and Sheila Whalley were in business together. Their business included, through Whalley Huws Ltd, and associated companies that the purchase of property for buy-to-let purposes. Frequently the property had been converted or was capable of being converted to individual flats.
14. The targets of the fraud were specialist buy-to-let mortgage lenders, six of which were losers. There were two forms of fraud alleged, both of which depended upon inflated valuations of the property in the market place. A freehold would be purchased using a bridging loan, repaid by a mortgage advance based upon the over valuation. Alternatively, and from 2004 onwards, more frequently, the purchase of the freehold would be financed by mortgage advances to nominee lessees of individual flats within the property, also based upon substantial over valuation.
15. Contrary to the requirements of the mortgagees no deposits were paid for the leasehold mortgages. The whole of the purchase price was financed by inflated valuations on which the lenders relied when making their advances.
16. The prosecution relied on the recurring pattern of applications and valuations to establish the existence of the conspiracy and the participation of individual defendants, particularly in the present context the appellant Nicholas Jones.
17. Mr Jones was not however responsible for mortgage applications. They were made by Antony Lowry-Huws or on his instructions and mortgage packagers who acted for the conspirators. False details would be submitted on behalf of the prospective nominees to the mortgage lenders, purporting to demonstrate an income and financial status sufficient to fund the leasehold mortgage.
18. By the means we have described only in summary the conspirators were able to obtain mortgage advances considerably in excess of the market value of the properties unencumbered whether freehold or leasehold. To take an example, 111 Carmen Sylva Road, Llandudno, the freehold was purchased for £275,000 by an associate company. At the same time, eight applications for leasehold mortgages were made by Antony Lowry-Huws and nominees upon inflated valuations securing in total in mortgage advances £447,625. The time came when the conspirators did not bother to carry out physical division of the properties into separate flats, they just represented falsely that the property had been converted. One of those properties was 12-14 Belgrave Road Colwyn Bay, a former nursing home. The freehold purchase price was £305,000. Had the mortgage applications been successful before the intervention of the police investigation the sum advanced would have been £281,887 in excess of the freehold purchase price.
19. The investigators examined just short of 200 mortgage applications. Placed before the jury was evidence following the money transactions relating to 40 separate properties situated in North Wales, Liverpool, Runcorn and Stoke-on-Trent. So long as the value of the property was rising at the rate it did notoriously between 2003 and 2007, the "profit" on each transaction could be and was utilised to repay the existing mortgages, resell the properties and finance new transactions. The total sum advanced was not known but the gain to the conspiracy was on the finding of the trial judge not less than £6 million.
20. There was found at the offices of TJ Bryan Smith and Philip Davis, the solicitors firm for whom the appellant Jones worked as a consultant a document called "An authority to act". It was also referred to during the trial as a list of syndicate members. It contained 23 names and signatures of family members and friends of the appellants Antony Lowry-Huws and Sheila Whalley. It gave authority to Mr Jones to accept instructions from Mr Lowry-Huws and Mrs Whalley in respect of any property transaction concerning any one or more of the listed names. Further, authority to utilise money standing to credit of any one of the individuals in respect of property transactions to finance further property transactions on behalf of any other named. The purpose of the document was clearly to authorise what would otherwise be at first sight a contravention of the Solicitors Accounts Rules.
21. It was contended on behalf of Mr Jones, and others, that each of these individuals named had agreed to participate in an honest scheme to make profits on property transactions. Not all of those names did accept this assertion. Margaret Sylvester, for example, gave evidence to the contrary although she was one of the signatories.
22. The prosecution case was that the syndicate was a sham. The "members" were nominees in whose name repeated applications for leasehold mortgages were made to finance the acquisition of property. At trial the prosecution relied on evidence from the mortgage lenders. In a freehold purchase for letting purposes the mortgagee made its lending decision based upon valuation and rental value. When money was being advanced against the security of a lease to an owner/occupier the lender would need to be satisfied of the borrower's means of repayment. In any case the sum advanced would be not more than 85% of the market value certified by a listed surveyor. The remaining 15% was to be found from the applicant's own resources. As we have said, the object of the fraud was to circumvent the lenders' rules of lending.
23. The prosecution relied on the retrospective valuation of properties to establish the over valuations on which the advances were based. Typically the over valuation would be in the order of 50%. Some nominee purchasers gave evidence that, although their signatures appeared on the documents presented to them by Mr Lowry-Huws, they were unaware of the transaction or of the relevant details of the transaction. The prosecution also relied on their evidence to the effect that representations as to income and status were false.
24. The case against the appellant Nicholas Jones mutated as the evidence emerged. It was at first part of the prosecution case that on several occasions the leases predated purchase of the freehold. It became clear that the police had misconstrued the effects of the conveyance files and the legal significance of the certificate of title document.
25. The purchase of the freehold was typically held back until the leasehold mortgage advances had been received to fund the purchase. The case against Nicholas Jones was in essence that he must have known from the repetition of transactions for which he carried out the conveyancing that the mortgage lenders were making advances against a substantial over valuation because, apart from any other reason, he was never required to receive a deposit from any of the purchasers and the stated value of the property was always the same as the purchase price. Notwithstanding this knowledge the prosecution assert that he lent his expertees to the continuation of the fraud and never brought it to the attention of his clients, the mortgage lenders.
26. Mrs Frances Silverman was a conveyancing expert who has written about and taught conveyancing. She gave expert evidence to the effect that there was not necessarily anything untoward about the coordination of purchase of the freehold and the selling of the leases. However, she gave evidence that in several respects Mr Jones' conveyancing practice was out of the ordinary. She had examined some 250 of his conveyancing files. She identified the following features amongst others. Mr Jones received minimal instructions, usually from Whalley Huws Ltd, Antony Lowry-Huws or Sheila Rose Whalley. That of course was a consequence of the "authority to act". No client care letters were issued. The leases would be drafted before the freehold purchase was complete. The lessees appeared to be nominees of Whalley Huws Ltd or Mr Lowry-Huws. There was no record of the deposits passing through the client account. Several of the nominees were the same names being repeated over and over again. The funds from the leasehold mortgage advances were being used for the purchase of the freehold. When the mortgage advanced was insufficient to meet the price of the leasehold the leasehold price to the lessee was dropped without notice to the lender. Surplus funds were usually transferred to Whalley Huws Ltd and small sums from time to time went to Antony Lowry-Huws and Sheila Whalley personally. Documents needing signature went not to the nominees but to Whalley Huws Ltd. Mr Jones acted for the buyer and the sellers of the properties as well as for the lenders. Frequently the sale proceeds were paid not to the seller of the lease but to the third party on the instructions of the seller. When flats were purchased by multiple nominees they all used the same solicitor. The valuations were carried out by very few valuers notwithstanding the properties were geographically distant from one another. On 9th May 2007 one of the lenders wrote to Mr Jones that a drive-by audit valuation had been made on Apartment 12 Harpal Road, Llandudno. Shortly after that he returned the mortgage offers marked as "not proceeded with". However the sale went ahead with a different lender.
27. Mrs Silverman, in the course of cross-examination by Mr Andrew Thomas QC, on behalf of Mr Jones, accepted that the solicitor, if he was provided with a surveyor's report, would act on it. He was not expected to express an opinion on value nor to give financial advice to buyers. She agreed that there was no requirement for a face-to-face meeting with a conveyancing client. She also agreed that if a transaction was not at arm's length the general rule that a solicitor should not act for both buyer and seller did not apply. But she said that was subject to the overriding principle that a solicitor should not act where there was a conflict of interest. She accepted that she had been unaware that many of the names in the authority to act document were those of family members and friends. Further she had not known that Mr Jones had kept an identification file in which the lessees had been properly identified. Most lenders, she said, would not be prepared to allow a solicitor to act for both the buyer and the seller where a mortgage was involved. We observe that Mr Jones was acting for the lender; therefore he owed to the lender the fiduciary duty of disclosure.
28. Mrs Silverman was asked for her opinion as to the general authority given to Mr Jones to act on behalf of syndicate members. She replied that there was no reason in law why a group of individuals should not make such an agreement but there were compelling reasons why they should not. In her view, no competent solicitor would draft such a document. Mrs Silverman agreed there was nothing wrong in principle with a client, or clients rolling forward finance in a solicitor's client account from one transaction to another. There was no black and white rule but rule 22 of the Solicitors Accounts Rules required the exercise of "extreme caution". Mr Thomas QC pointed out to her that the rule in fact said that solicitors should "use discretion" as to whether to draw against an uncleared cheque. Mrs Silverman did not accept that she was out of touch with conveyancing practice in this regard.
29. The appellant Nicholas Jones chose not to give evidence in his own defence. Nor did he rely upon evidence from his own expert who was present in court during Mrs Silverman's evidence. The judge made it clear to the jury that the only question with which they were concerned in the appellant Jones' case was whether he had acted dishonestly. As the judge directed the jury Mr Jones' position was encapsulated in the questions posed by the prosecution. Did he realise the lenders were being deceived as to exactly what was going on? Were steps being taken to hide the facts from the banks and to mislead them in a dishonest way?
30. Following the completion of Mrs Silverman's evidence Mr Thomas QC applied to the judge to adduce evidence either under section 100(1) of the Criminal Justice Act 2003 or evidence which he submitted was relevant to an issue in the case. The bad character alleged was an adjudication upon Mrs Silverman's evidence by the Solicitors Disciplinary Tribunal in the case of Andersons Solicitors and Others (case No 10929-2012). The respondents appeared before the Tribunal to answer a number of charges relating to costs charged to clients. In short, it was alleged that their conveyancing charging structure was so "dazzlingly complex" as to mislead the client as to what the eventual charge would be and that some of the charges demanded of certain clients were disproportionate to the work done.
31. The Solicitors Regulation Authority (the prosecutor) relied upon the evidence of Mr Philip Palmer and the respondents upon the expert evidence of Mrs Frances Silverman. Mrs Silverman gave evidence that the respondent's charging structure was, in her opinion, reasonably clear although there were one or two individual items charged that had surprised her. The Tribunal preferred the evidence of Mr Palmer.
32. At paragraph 338 of its judgment the Tribunal stated:

"The Tribunal preferred the evidence of Mr Palmer with regard to its finding of overcharging on the Advice on Co-ownership, reporting on mortgage conditions considering additional titles and cash back charges which it found to have been

wholly disproportionate. The Tribunal expressed concern with regard to certain aspects of Mrs Silverman's expert evidence. When being cross-examined by Mr Dutton she stated that the Report before the Tribunal had been based on a

preliminary view which had then been topped and tailed. When preparing the Report

the facts stated had been based on what she had been told by the Respondents. She had not seen the Rule 5 Statement or the Defence. She had not seen any files or extracts from files. She had not seen the Client Care letters or the ISF forms. Her evidence was that she had had an opportunity to consider these documents on the morning she gave evidence and having done so stood by her Report and her

comments on Mr Palmer's Report. The Tribunal were however concerned in these circumstances that her evidence was not as objective or independent as it might have been."

33. Section 98 of the Criminal Justice Act explains the references in Part 2 chapter 1 of the Act to bad character as follows:

"98 References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a)has to do with the alleged facts of the offence with which the defendant is charged, or .

(b)is evidence of misconduct in connection with the investigation or prosecution of that offence."

34. "Misconduct" is by section 112(1) the commission of an offence or other "reprehensible behaviour". Mr Harrington QC, for the prosecution, submitted to the judge that the Tribunal had not found the witness to have been guilty of any reprehensible behaviour, it had merely preferred the evidence of one expert over the evidence of another.
35. In his ruling the reasons for which were given on the 25th April 2013, the judge, said at page 4D of the transcript:

"In reality it seems to me that for the finding against Mrs Silverman to be admissible at all it would have to be of a sufficiently serious nature so as to amount to misconduct such as brings it within the bad character rules, otherwise it simply amounts to the finding of the Tribunal where they come to a conclusion that they prefer the evidence of one witness over that given by another. Such a finding cannot, in my judgment, be admissible in the present trial as it is simply not relevant to call evidence that Mrs Silverman's evidence was found to be unsatisfactory in another case. Doubtless there are many cases in which her evidence was relied upon, others where it was not. It is simply irrelevant as far as the present jury are concerned."

36. We agree with the judge that the evidence did not constitute evidence of bad character within the meaning of section 98 and section 112; indeed in argument Mr Thomas QC did not seek to submit to the contrary. The evidence amounted to no more than proof of the unwillingness of the witness to modify her opinion once she had seen all the relevant documents. That had caused the Tribunal to doubt her complete impartiality on the issue in respect of which she had been giving evidence. The documents themselves caused the Tribunal to consider that a concession from her original opinion was justifiable.
37. The judge rightly, in our view, concluded that the issue was therefore simply one of relevance. In the present case the witness was provided with the documents and she had made, in the course of her evidence, several appropriate concessions. As the judge noted in his summing-up, the high watermark of the defence argument was a suggestion by Mr Thomas QC that Mrs Silverman may have been over critical of some of the appellant's conveyancing practises.
38. Having considered Mr Thomas' carefully structured criticisms of Mrs Silverman's evidence we are left with the distinct impression that far from being obdurate in sticking to her first impressions of the appellant's conveyancing files, she conceded that he was acting as the rules required or as his clients had authorised him. Upon the principal questions as to the prudence of acting under an authority such as that produced or of rolling over funds in the solicitor's client account from one transaction to the other, without the reckoning of a balance after each transaction, we find nothing in Mrs Silverman's evidence that could remotely qualify for the description "bias" or "obduracy". Her evidence, it seems to us, accorded with sound common sense and good solicitor's practice. Furthermore, there was nothing in the evidence that the appellant sought to adduce that could possibly impact on whether the jury could conclude that (i) the whole edifice was a sham and (ii) the appellant knew it was a sham. In our judgment the finding in paragraph 338 by the Solicitors Disciplinary Tribunal was at best peripherally relevant and would have had no bearing whatever on the safety of the verdict in the appellant Nicholas Jones' case.
39. We turn to Susan Lowry-Huws' appeal against conviction. Mr and Mrs Lowry-Huws transacted property deals through their own company, MLH Ltd. The prosecution conceded that Mrs Lowry-Huws was a minor player in the fraud but averred that her involvement in one property transaction in particular demonstrated her membership of it. Mr and Mrs Barry Wainwright lived at 45 Hamilton Road, Sandycroft in Deeside. Mr Lowry-Huws owned a property two or three doors down. Mr and Mrs Wainwright needed to move in order to accommodate Mr Wainwright's mother and they put No 45 on the market for £135,000. Having found an alternative property, a bungalow in Pippins Close in Shotton, Mr Wainwright was getting anxious because in the course of some 9 months he had not received any offers through his estate agent. He went to see Antony Lowry-Huws for advice because Susan's parents had been friends with the Wainwrights for years. Mr Lowry-Huws said that he was able to arrange bridging finance for the Wainwrights and then offered to buy their property at No 45 for £130,000. The Wainwrights agreed and they were introduced to the appellant Nicholas Jones. It may be that although the price agreed between them was £130,000 Mr Wainwright was prevailed upon to sign a transfer stating the transfer to be £149,500.
40. In 2009, during the police investigation, Detective Constable Elgin left a message asking to speak to Mr and Mrs Wainwright. In a panic they contacted Mr Lowry-Huws who went to visit them. He advised that if they told the police the sale price of No 45 had been about £150,000, there would be problems. Mr Wainwright then made contact with Detective Constable Elgin and gave the false story. Later Mr and Mrs Wainwright were arrested. When they were interviewed they told the truth - the sale price had been £130,000.
41. The significance of the false story to the police was that the appellant Susan Lowry-Huws had obtained a mortgage advance in respect of her purchase of No 45 Hamilton Road, in the sum of £133,055 against a stated but false purchase price of £149,500. Mr Lowry-Huws was therefore attempting to cover his tracks. This was another transaction in which the value of the property had been inflated so as to complete the purchase without the need for the buyer to find a deposit out of her own resources. The valuation had been carried out by Mr Walker, whose evidence was that he almost invariably valued properties at the sale figure given to him by Antony Lowry-Huws.
42. Mr Wainwright in his evidence confirmed that his own discussions had been with Mr Lowry-Huws and not Mrs Lowry-Huws.
43. In the documents submitted to the lender for the purpose of approval of the loan, it was represented that the sale price was £149,500 and that a deposit of £16,000 had been met from the applicant Mrs Lowry-Huws' own resources. This was of course a fiction. The written evidence tended to show that the appellant Nicholas Jones knew that the true sale price was £130,000 and also knew that the mortgage advance to Mr Lowry-Huws represented a fictitious sale price of £149,500. The issue for the jury therefore was whether Mr Lowry-Huws had knowingly lent herself to the fraud on the mortgage lender.
44. The prosecution pointed to two particular features of the transaction. The first was that she was never asked to provide a deposit for the transaction. It almost appeared to be an assumption that she would not be. She was herself a property developer. She must have known that the transaction was being fully financed with a mortgage based on an inflated sale price and valuation. The second was that the excess of £751.75 between the payment to Mr and Mrs Wainwright and sale price was paid into Mr and Mrs Lowry-Huws joint Abbey National account. The prosecution therefore argued that since the transaction was carried out for her benefit it was a compelling inference she too was a member of the dishonest enterprise. However, she had chosen not to give evidence in support of the account she gave in interview with the police.
45. The trial judge generously instructed the jury that they should not hold against Mr Lowry-Huws the fact that she had not given evidence. It follows that they drew the inference for which the prosecution contended solely from the uncontradicted evidence given in the course of the prosecution case.
46. Mr Potter now argues that while the inference may have been possible while Mr Walker was still a defendant in the trial, the jury's verdict of not guilty in his case made Mrs Lowry-Huws' conviction difficult to sustain. She could only be convicted if she conspired with someone other than her husband and there was no other candidate. The judge explained the law in this regard to the jury and there is no reason to doubt that they understood it. However, it was not essential that the appellant had personal dealings with another conspirator provided that she joined the conspiracy in the knowledge of the kind of roles others were performing. That knowledge included that Mr Walker or Mr Darlington (whichever of them happened to carry out the survey) would rubber stamp her husband's statement of the sale price and that the solicitor, Mr Jones, would be conducting the conveyancing in such a way as to avoid the need to provide a deposit against the purchase price.
47. The fact that the jury concluded Mr Walker did not act dishonestly when he acted on her husband's instructions did not, in our view, imply that she did not conspire with her husband and Mr Jones. The jury clearly came to the sure conclusion, as a result of their findings in relation to these transactions and perhaps others, that the appellant acted with intent to defraud the mortgage lender. They were not prepared to accept the defence that she may have been an innocent recipient of her husband's private machinations on her behalf. We do not consider that the jury's conclusion was unsafe. Accordingly both appeals against conviction are dismissed and Antony Lowry-Huws renewed application for leave is refused.

Appeals against sentence.

48. We turn to the appeals against sentence of Antony Lowry-Huws and Sheila Rose Whalley. The appellant Lowry-Huws is aged 65 years. He was for the purpose of sentence for this offence of good character and the judge took account of testimonials written on his behalf. Mr Power submits that the sentence in his case was excessive having regard to the seriousness of the offence as the judge assessed it. Mr Power does not criticise the trial judge's evaluation of the seriousness. In our view, this was a realistic concession given the judge had listened to the evidence over a period of many weeks.
49. The business was not dishonest from the beginning. It became dishonest shortly afterwards. The dishonesty grew when the conspirators spotted a weakness in lending practice in an expanding and inflationary market. However the conspiracy was in existence for a period of 4 years or more. The target was banking institutions and they were deceived on a very large scale. There were six losers. The offence was motivated by greed and the total sum obtained very substantial. The conspirators hoped that they would generate a huge property portfolio without ultimate losses. But of course as soon as the first complaint was made, or the markets suffered a dip, the whole edifice was likely to fall with consequent losses to the lenders arising out of the inflated valuations, and the nominees would be exposed to very considerable debts.
50. The scale of dishonesty was described by the judge as "breathtaking". The persistence of the fraud was demonstrated by evidence that when it appeared the lenders would be carrying out an audit valuation, the conspirators would simply withdraw the application and engage another lender perhaps using different nominees.
51. The judge found that innocent people were involved in the scam by their inclusion as nominees. Several appeared as nominees who were not listed in the authority to act. They were people who reposed trust in the conspirators so that abuse of trust was a feature of the offending. On many occasions false details were submitted on behalf of nominee purchasers. The inevitable result was that suspicions fell on them and arrests took place as in the case of Mr and Mrs Wainwright.
52. We accept Mr Power's submission that the cases reveal arguably more serious offences which have attracted sentences of 7 years' imprisonment or thereabouts. However, it is a truism that no case is the same and the question we have to ask is whether the scale of the dishonesty revealed in this case renders such a sentence manifestly excessive.
53. As we observed during argument the maximum sentence for conspiracy to defraud has been for many years 10 years' imprisonment - see currently section 12 of the Criminal Justice Act 1987 - yet fraudulent crime has become even more sophisticated and persistent . The effect is to create quite a wide band of very serious offences, towards the top of the range and near to the maximum sentence. Bearing all these considerations in mind, and particularly the findings of the trial judge, we cannot conclude that the sentence upon Antony Lowry-Huws was excessive. It was a proportionate reflection of the seriousness of his offending over a substantial period of time. Accordingly his appeal against sentence is dismissed.
54. The judge was, in our view, entitled to treat Sheila Rose Whalley, now aged 68, as equally culpable. The distinction he made when reducing her sentence to 6 years' imprisonment was that she was sole carer for her husband, whom the judge described as "gravely ill". Mr Pratt QC has addressed us solely on the impact of the appellant's personal mitigation. The selfless and devoted care with which the appellant tended a man with vascular dementia and other physical problems when she was herself in indifferent health was attested to the judge by Mr Davis, a social worker in North Wales. Mrs Whalley has been in prison since the 6th September 2013. Accordingly there has been a prolonged opportunity for prison staff to observe her response to the prison environment. The reports from the prison with which we have been provided demonstrate an offender with exceptional personal qualities which she has applied to the welfare of others within the prison establishment. As a result she has been given several important responsibilities, in all of which she has acquitted herself with merit.
55. In the meantime her husband has been moved to a nursing home and she has been permitted one compassionate visit. She continues to fret that she is unable personally to perform acts of care which she considers should be her own and her duty. From time to time her emotional health has been threatened and she has been prescribed antidepressants. We well understand the judge's reluctance to endow Mrs Whalley's person mitigation with the weight it might have been received if she had had the grace to admit her guilty from the outset.
56. However, the effect of the additional material available to us but not to the judge is to demonstrate that she is consistent in her desire to make reparation and that the burden of imprisonment is significantly greater for her than it is for most of her peers.
57. In our view, these factors are of substance in the circumstances of the present case and they should be reflected in a further reduction in sentence to 5 years' imprisonment. To that extent her appeal is allowed.
58. We would like to repeat that we are indebted to trial counsel for their attendance in the appeal and for the focus of their submissions which have much assisted us.