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Allegations of fraud by abuse of position can be both distressing and confusing, particularly for those who have never encountered the criminal justice system before. This offence is treated seriously by the courts, but not every case leads to an immediate custodial sentence. Many people in this situation want to know whether a suspended sentence is a realistic possibility. In this article, we explain what fraud by abuse of position involves, the usual sentencing approach, what a suspended sentence means, and the factors that influence whether such a sentence might be imposed. We also offer practical suggestions for improving your prospects and point you towards sources of further help.
What is fraud by abuse of position?
Fraud by abuse of position is a specific offence under the Fraud Act 2006. It occurs when someone who is expected to safeguard, or not to act against, the financial interests of another person dishonestly abuses that position, intending to make a gain for themselves or cause a loss (or risk of loss) to another.
This offence often arises in situations where a person holds a position of trust – such as an employee, carer, company director, or financial adviser – and uses that position to benefit themselves at the expense of the person or organisation they are supposed to protect. Examples include an employee diverting company funds for personal use, a carer misusing a vulnerable person’s money, or a trustee acting against the interests of a charity.
The law does not require that the abuse results in actual financial loss; the intention to make a gain or cause a loss is sufficient. The prosecution must prove that the defendant was in a position where they were expected to protect another’s financial interests, that they abused that position, and that they acted dishonestly.
What are the typical sentences for fraud by abuse of position?
Sentences for fraud by abuse of position can vary widely, reflecting the seriousness and circumstances of each case. The Sentencing Council provides guidelines to help judges and magistrates determine the appropriate penalty, taking into account factors such as the amount of money involved, the level of planning, and the impact on victims.
For minor cases – such as a one-off incident involving a small sum and no significant harm – a community order or a suspended sentence may be considered. However, where the fraud is prolonged, involves substantial sums, or causes significant distress or hardship to victims, the courts are more likely to impose an immediate custodial sentence.
The maximum sentence for fraud by abuse of position is 10 years’ imprisonment. In practice, the length of sentence will depend on the scale of the fraud, the degree of trust breached, and any aggravating or mitigating features.
What is a suspended sentence and how does it apply to these cases?
A suspended sentence is a custodial sentence that is not activated straight away. Instead, the court imposes a prison sentence but suspends it for a set period, typically between six months and two years. During this time, you are allowed to remain in the community, provided you comply with any conditions the court sets, such as unpaid work, rehabilitation activities, or regular reporting.
If you breach the conditions or commit another offence during the suspension period, the court can order you to serve the original prison sentence. Suspended sentences are generally reserved for cases where the court believes that, although the offence is serious enough to warrant custody, there are strong reasons why immediate imprisonment is not necessary.
In cases of fraud by abuse of position, a suspended sentence may be considered for less serious offences, particularly where the defendant has no previous convictions, the amount involved is modest, or there are compelling personal circumstances.
Is it possible to receive a suspended sentence for fraud by abuse of position?
Yes, it is possible, but it depends on the details of your case. Courts have the discretion to suspend sentences of up to two years, provided they are satisfied that immediate custody is not required to reflect the seriousness of the offence or to protect the public.
For lower-value frauds, especially those involving a single incident, limited planning, and no lasting harm to the victim, a suspended sentence is a realistic outcome – particularly for first-time offenders. The court will consider your role, the level of trust breached, and whether you have made efforts to repay the money or repair the harm caused.
If the fraud is large-scale, however, and it involves a high degree of planning, or has caused significant distress or hardship, a suspended sentence becomes less likely. The presence of aggravating factors (such as targeting vulnerable victims, acting over a long period, or attempting to conceal the offence) will also reduce the chances of a suspended sentence.
Mitigating factors, such as genuine remorse, early admission of guilt, cooperation with the investigation, or evidence of personal difficulties, can all help persuade the court to suspend a sentence. Each case is unique, and the outcome will depend on the full circumstances presented to the court.
What factors influence the court’s decision on a suspended sentence for fraud by abuse of position?
- The amount of money involved: Larger sums and greater financial harm make a suspended sentence less likely.
- The duration and planning: Offences that are carefully planned or carried out over a long period are treated more seriously.
- The breach of trust: The greater the trust placed in the offender, the more serious the breach.
- Impact on victims: If the fraud has caused significant distress, hardship, or loss to vulnerable individuals, the court is less likely to suspend the sentence.
- Previous convictions: A clean record will work in your favour, while a history of dishonesty offences will count against you.
- Personal circumstances: The court will consider your age, health, family responsibilities, and any evidence of coercion or pressure.
- Remorse and restitution: Demonstrating genuine regret, making efforts to repay the money, or otherwise putting things right can help your case.
- Risk of reoffending: If the court is satisfied that you are unlikely to commit further offences, this increases the chances of a suspended sentence.
- Effect of custody: If imprisonment would cause exceptional hardship to you or your dependants, the court may be more inclined to suspend the sentence.
The court will look at the overall picture, balancing aggravating and mitigating factors before reaching a decision.
How serious does fraud by abuse of position have to be for a prison sentence?
Fraud by abuse of position is always taken seriously, but not every case results in immediate imprisonment. The seriousness of the offence depends on the amount of money involved, the level of trust breached, the impact on victims, and the presence of any aggravating or mitigating factors.
For relatively minor cases (like a one-off incident involving a small sum and no lasting harm) the court may consider alternatives to immediate custody, such as a suspended sentence or community order. That said, if the offence involves substantial sums, is carried out over a long period, or causes significant distress or hardship, a prison sentence is much more likely.
The court will also consider whether there are exceptional circumstances that might justify a more lenient approach, such as serious health problems, evidence of coercion, or a genuine lack of understanding of the consequences.
How can I improve my chances of receiving a suspended sentence for fraud by abuse of position?
If you are facing a charge of fraud by abuse of position, there are several steps you can take to improve your chances of receiving a suspended sentence:
- Obtain specialist legal advice: An experienced criminal defence solicitor can assess the evidence, advise you on your options, and present your case in the best possible light.
- Show genuine remorse: Accepting responsibility and expressing sincere regret for your actions can make a significant difference.
- Cooperate with the authorities: Assisting the police, providing information, or entering a guilty plea at an early stage can all be taken into account by the court.
- Make restitution: If possible, repaying the money or making efforts to compensate the victim can be persuasive mitigation.
- Address underlying issues: If your actions were linked to personal difficulties, such as addiction, mental health problems, or financial hardship, taking steps to address these issues can help your case.
- Provide evidence of your circumstances: Letters from employers, family members, or support workers, as well as medical reports, can help the court understand why a suspended sentence would be appropriate.
Where to get more help
Being accused of any crime, let alone one as serious as fraud, can be overwhelming. To feel more confident in tackling this situation, get a solicitor on side as soon as possible. For a friendly no obligation chat about how to proceed, get in touch with the team at Stuart Miller Solicitors today.
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