No: 200702578/2791/A1 
Neutral Citation Number: [2007] EWCA Crim 1998
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Friday, 20th July 2007

B e f o r e:

MR JUSTICE GRIFFITH WILLIAMS 

MR JUSTICE KING 
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R E G I N A 

v 

DIANA MARGARET KIDD AND MELANIE ISABEL BIANCHY
 
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MR P HOBSON appeared on behalf of KIDD  
MISS J GEDRYCH appeared on behalf of BIANCHY
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J U D G M E N T 

1.	Mr Justice Griffith Williams: The appellants appeal by leave of the single judge.  They are mother and daughter.  Diane Margaret Kidd is 70 years old and Melanie Isabel Bianchy is 43 years of age.  Both were of previous good character.
2.	On 27th March 2007 at the North Pembrokeshire Magistrates' Court they pleaded guilty to an offence of attempting to obtain property by deception and were committed to the Crown Court for sentence.  On 3rd May 2007 in the Crown Court at Swansea, they were both sentenced by His Honour Judge Morton to 12 months' imprisonment.
3.	David Glyn Parry died on 5th May 2006.  He was then 52 years old.  For a period of some eight to ten years before his death he had been in a relationship with Miss Bianchy, although they had not lived together. He had suffered from ill health for some time, and when in hospital before his death he had appointed his aunt, Elizabeth Harris, the sister of Mrs Kidd and so the aunt of Miss Bianchy, as his next of kin.  He died in his own home of a heart attack.  It was around the time of his funeral that a will not in proper legal form was produced, purporting to leave his estate to a man called Alex Ward, described as Mr Parry's adopted son.
4.	A few days later Miss Bianchy told Mrs Harris that there was a will at her mother's home.  Soon afterwards that will was sent to Mr Parry's solicitors in a sealed envelope.  When opened it was found to appoint Mrs Harris and her husband as executors and the whole estate, valued at £142,345, was left to Miss Bianchy.
5.	The witness to the testator's signature purported to be a Marina Sprague, the sister of Miss Bianchy.  The solicitors were suspicious about the authenticity of the will because there were spelling mistakes and it was not well written.  After the solicitors initiated some enquiries, Mrs Sprague, at the behest and request of the appellants, swore an affidavit in which she falsely asserted that the will was genuine and that Mr Parry had wanted it to be a secret from Miss Bianchy until after his death.  The police, too, had concerns.  Miss Bianchy told them that she had found the will under the bed of her late father and believed it to be genuine.
6.	However, when Mrs Sprague was interviewed by the police she admitted that her affidavit was false.  She said that she had had no involvement in writing the will and that the scheme had been "cooked up" by her sister, Miss Bianchy, and her mother, Mrs Kidd.  Indeed, after the death of Mr Parry, Miss Bianchy had told Mrs Harris it would be wrong if anyone else got the estate because she, Miss Bianchy, had looked after Mr Parry in his final years.
7.	Mrs Kidd was then interviewed, but she denied any wrongdoing.  When Miss Bianchy was interviewed she declined to answer questions.
8.	A subsequent forensic examination of the will revealled that it had been written by Mrs Kidd and that Mrs Sprague's signature had been forged by Miss Bianchy.
9.	When the appellants were again interviewed, Mrs Kidd admitted that she had forged the will because she thought that the estate may go to someone other than her daughter and Mrs Bianchy admitted forging her sister's signature.  She said she had done so at her mother's request.
10.	Passing sentence the learned judge said this:
"You, Diana Kidd, initiated the plan and wrote most of the will.  You, Melanie Bianchy, forged your sister's signature as a witness and, of course, readily went along with the scheme.  And I do not distinguish between you as far as participation is concerned. 
It may have been a naive forgery and a naive attempt to obtain the estate, but you both clearly expected and hoped that it would succeed.  When the will was questioned you both persisted in the fraud and persuaded Marina Sprague to swear a false affidavit.  The will was presented to solicitors to obtain probate.  And only when the handwriting evidence was obtained did you both eventually admit guilt. 
Clearly you have both suffered bereavement.  But bereavement cannot have been a cause of an offence of this nature which was persisted in.  The offence is clearly one that is so serious that it has got to be custody, and it is too serious for that sentence to be suspended."
11.	A little while later at the end of his sentencing remarks the judge said:
"Had you pleaded not guilty the appropriate sentence would have been one of 18 months."
12.	The reference to a bereavement was to the death of Mrs Kidd's husband, and so Miss Bianchy's father, some six weeks before the death of Mr Parry and also to the death of Mr Parry himself.
13.	Mr Hobson, who represents Mrs Kidd, and Mrs Gedrych, who represented Miss Bianchy and who represented her in the Crown Court, both accept that the custody threshold was crossed in this case.  In the Crown Court the burden of their submissions, as is clear from the learned judge's sentencing remarks, was that the appropriate sentence was a suspended sentence, but in this court they submit that the sentence was manifestly excessive and invite this court to reduce its length.  They submit that insufficient regard was had by the learned judge in the Crown Court to, in particular, the personal mitigation.  That personal mitigation included letters of reference and reports about the appellants' medical histories.
14.	We have been helpfully referred to a number of decisions of this court.  In Spillman and Spillman [2001] 1 Cr App R(S) 139 the facts were that the appellants, husband and wife, were concerned in a sophisticated and elaborate scheme to swindle a lady, aged 87, out of about £1.8 million by creating and forging a will under which the appellants were to be her main beneficiaries.  Another lady was engaged to impersonate the testatrix and solicitors were instructed to prepare the will which the second lady purported to execute. As in the present case suspicions were aroused, enquiries made and handwriting tests carried out.  So it was that the appellants were charged with conspiracy to defraud.  Mr Spillman, who was convicted by a jury, was sentenced to seven years' imprisonment and Mrs Spillman, who had pleaded guilty, to five years and three months' imprisonment.  Their appeals were dismissed.
15.	The other cases to which we have been referred were on different facts, but they are nonetheless instructive.  In Lusher [1995] 16 Cr App R(S) 313 a total sentence of three years' imprisonment for offences of attempting to obtain property by deception and forgery was reduced to two years.  The appellant, who had pleaded guilty, had produced from the Philippines various documents purporting to show that his wife had died there and made claims on four insurance policies for sums amounting to £155,000.  The appellant swore an affidavit to obtain probate in respect of his wife's estate and produced a number of genuine documents from the Philippines with fraudulent entries.  These included a death certificate and burial, undertakers and hospital fees.  When he discovered that the insurance companies were investigating his claims, he went to the police and admitted the fraud.
16.	In Morgan [1995] 16 Cr App R(S) 478 an appeal against a sentence of two years' imprisonment for three counts of attempting to obtain a total of £202,558 on three life assurance policies by deception was dismissed.  The appellant, who had pleaded guilty, and his wife, representing herself as his sister, had reported the death of the appellant's wife in a road traffic accident to the Irish Embassy in Nigeria and produced genuine documents, including a death certificate and a police report, the contents of which were false.  On the appellant's return to this country he set about making the insurance claim.  When he was interviewed by assessors instructed by the insurers he maintained the deception, but further investigations exposed the frauds and he admitted them.
17.	Giving the judgment of the court, Holland J said at 479:
"This court is struck by the fact that this was a very sophisticated determined fraud.  One has only to look at the documentation that was prepared, and to consider the various stages that the plan embraced, all of which had been carefully carried out. ...  Overall it is the sheer size and scale of this activity that impresses.  Once that is taken into account, and the sentence anxiously examined, this court is entirely of the view that the sentence was absolutely right."
18.	In Lincoln (1994) 15 Cr App R(S) 333 a sentence of 12 months' imprisonment for forging the name of the appellant's wife on a contract for the sale of a house and a Land Registry transfer was reduced to six months.  Giving the judgment of the court, Ognall J said at 334:
"However exceptional the circumstances, forgery ‑‑ particularly forgery of documents of this character, affecting title to property, must in our view, in all but the most exceptional circumstances, be visited by a sentence of immediate custody."
19.	Those observations, in our judgment, apply with equal force to the forging of wills.  The innocent purchasers later acquired good title, and, although the appellant had obtained the net equity of £12,800, he would have entitled to a substantial share in that equity in any event under matrimonial legislation.  It is clear from a reading of the judgment that the offences committed in that case were committed in very unusual circumstances.
20.	The view of this court is that the facts of the present case are not such as to bring it within the exceptional category where a sentence of immediate imprisonment can be avoided.  The appellants went to considerable lengths to advance their fraud.  Of particular concern is their preparedness to prevail upon Mrs Sprague to swear a false affidavit which contained elaborate detail to support the authenticity of the will.  That is conduct which we regard as an aggravating factor.  Further, even after Mrs Sprague had admitted to the falsity of the affidavit, the appellants continued to deny their fraudulent conduct.
21.	That said, the fraud in this case undoubtedly lacked the sophistication of the conduct of the appellants in Lusher and in Morgan.  It was certainly not as serious as that considered by this court in Spillman and Spillman; even so, this was a serious and determined fraud.
22.	We have concluded that, notwithstanding the mitigation, and in the case of Mrs Kidd her age, that the sentences passed in this case, while arguably at the top end of the range, were not manifestly excessive.  It follows that the appeals are dismissed.