De Oliveira, R. v [2005] EWCA Crim 3187

Case No 200504757 A0[2005] EWCA Crim 3187
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 22nd November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE CRESSWELL
HIS HONOUR JUDGE GOLDSACK
Between
R E G I N ACrown-v-
Between
FABIO DE OLIVEIRA
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M GOUDIE appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE CRESSWELL: On 15th July 2005, at the Bow Street Magistrates' Court, the appellant pleaded guilty to one offence of having a false instrument contrary to Section 5(2) of the Forgery and Counterfeiting Act 1981 and was committed to the Crown Court for sentence. On 26th August, at Southwark Crown Court, the appellant was sentenced by Mr Freeland QC, sitting as a Recorder, to 15 months' imprisonment. He appeals against sentence by leave of the Single Judge.[2]The facts were as follows. On 13th July 2005 the appellant was arrested for assaulting a prostitute. On the way to the police station the appellant said he was Brazilian. When searched at the police station the appellant was found to have a membership card with a photograph in the name of L Williams. He also had an Italian passport with his photograph inserted, but with the personal details of a person named Martinelli. Subsequent examination showed the passport to be a forgery. In interview, the appellant made no comment.[3]The Recorder, when passing sentence, referred to the decision of this court in R v Kolawole [2005] EWCA Crim 3047 and said that account was taken of the guidelines in that case. The appropriate sentence he said was, having regard to Kolawole, 15 months' imprisonment. 37 days spent on remand would be taken into account.[4]The appellant was born on 3rd October 1981. He is a Brazilian national of previous good character. We have seen a pre-sentence report dated 5th August 2005 and a prison report dated 8th November 2005.[5]The ground of appeal is that the Recorder sentenced the appellant applying the guideline in Kolawole for the aggravated offence of using a false passport. Bearing in mind the difference in maximum sentences for the offence in question, 15 months' imprisonment was manifestly excessive.[6]In the view of this court, it is necessary to distinguish between(a) using a passport which is, and which the defendant knows or believes to be false, with the intention of inducing somebody to accept it as genuine contrary to Section 3 of the Forgery and Counterfeiting Act 1981, where the maximum sentence is ten years;(b) having a passport which is, and which the defendant knows or believes to be, false with the intention that he or another shall use it to induce somebody to accept it as genuine contrary to Section 5(1) of the 1981 Act, where the maximum sentence is again ten years' imprisonment; and(c) having, without lawful authority or excuse, a passport which is and which the defendant knows or believes to be false contrary to Section 5(2) of the 1981 Act, where the maximum sentence is two years' imprisonment.[7]The guideline case of Kolawole was principally concerned with cases falling within (a) or (b) above. The Vice President, Rose LJ, said, at paragraph 6:
"... where one false passport is being used, contrary to Section 3, or is held with the intention of use, contrary to Section 5(1), the appropriate sentence, even on a plea of guilty, by a person of good character, should now usually be in the range of 12 to 18 months."
In the present case, the appellant pleaded guilty to an offence contrary to Section 5(2) of the 1981 Act, ie an offence falling within (c) above. The maximum sentence was two years, not 10 years. It does not seem that the Recorder appreciated this distinction.[8]In all the circumstances, bearing in mind(a) that the appellant pleaded guilty to an offence contrary to Section 5(2) of the 1981 Act and(b) the maximum sentence for that offence (two years' imprisonment), we consider that the sentence imposed by the Recorder was too high. We propose to quash the sentence of 15 months' imprisonment and substitute a sentence of 8 months' imprisonment, while observing that this offence contrary to Section 5(2) of the 1981 Act was nonetheless a serious offences.[9]To that extent, this appeal is allowed.