Zenasni, R. v [2007] EWCA Crim 2165

Case No 200703115 A9[2007] EWCA Crim 2165
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 5th September 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE DAVIS
MR JUSTICE UNDERHILL
Between
R E G I N ACrownv
Between
SAFI ZENASNI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss D Onuzo appeared for Appellant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: On 17th April 2007 the appellant pleaded guilty before the Westminster Magistrates to an offence of possessing without reasonable excuse a false identity document, contrary to section 25(5) of the Identity Cards Act 2006. On 15th May 2007 he was sentenced by His Honour Judge Rivlin QC in the Southwark Crown Court to 15 months' imprisonment. He appeals against sentence with the leave of the single judge.[2]The relevant facts can be summarised as follows. The appellant is an Algerian national, now aged 54. He has been living illegally in the United Kingdom for many years. In 2002 he was convicted of an offence of robbery and sentenced to 30 months' imprisonment. An order was made for his deportation but it has not yet been implemented. On 16th April 2007 he was subjected to a random search at an underground station under section 44(2) of the Terrorism Act 2000. He was found to be in possession of a forged identity card bearing his photograph but falsely identifying him as a French national called Rabah Anaya. He admitted straightaway that the card was a forgery. He said that he had bought it some three or four months previously. There was no specific evidence that he had used it, or intended to do so, and he was not charged with the distinct offence of having an identity card in his possession with intent to use it in order to establish a registrable fact, contrary to section 25(1) of the 2006 Act. As to the terms of subsections 25(1) and (5) of the 1996 Act, Toulson LJ has, in the judgment in the case of Carneiro just delivered, summarised the relevant statutory provisions and we need not repeat here what he has said.[3]The appellant pleaded guilty at the earliest opportunity. The judge, in his sentencing remarks, said this:
"The maximum sentence for an offence of this nature is two years' imprisonment. Identity fraud is a very serious matter. It must be treated seriously by the courts and it almost inevitably follows that there will be a sentence of imprisonment for it. In your case you will have to serve one half of the sentence I am about to impose. You will only have to serve any part of the remainder of the sentence if you get into any further trouble in the overall period of sentence or breach any licence conditions if you are permitted release on licence. I take into account that you have co-operated with the police, that you have made admissions, that you have pleaded guilty and, as your learned counsel has stressed, that there is no evidence that you ever actually made use of this card. But I have no doubt at all that you must have had it in your possession for some sinister reason. Certain it is that no good reason has been advanced on your behalf; indeed no reason at all has been advanced on your behalf."
The sentence which he then proceeded to pass is the sentence to which we have referred.[4]Miss Onuzo, who appears for the appellant before us as she did before the judge, says that the judge was wrong in those remarks to attach the weight that she says he did to the "sinister" purpose for which the appellant had the identity card in his possession. Since, she submits, he had not been charged under subsection (1) of section 25, the purpose for which he possessed the card was irrelevant.[5]In support of her submissions, Miss Onuzo referred us to the decision of this court in De Oliveira [2006] 2 Cr App R (S) 17. That was a decision under the equivalent provisions of the Forgery and Counterfeiting Act 1981, section 5 of which, like section 25 of the 2006 Act, creates distinct offences of simple possession of a false instrument without reasonable excuse and of possession of such an instrument with intent to use it. There was the same differential in the maximum terms for the two offences as under the 2006 Act. The defendant in that case had been charged only with the former offence, that is under section 5(2). A forged passport had been found in his possession in the course of a search following his arrest for another matter. The sentencing judge imposed a sentence of 15 months' imprisonment, purporting to follow the earlier decision of this court in Kolawole [2005] 12 Cr App R (S) 14. This court in De Oliveira pointed out that Kolawole was concerned with offences under section 5(1) of the 1981 Act, which involved possession of a false instrument with intent to use it, or under section 3, which created an offence of actual use; and that the guidance there given did not apply to cases of simple possession under section 5(2). It substituted a sentence of eight months' imprisonment, "while observing that the offence contrary to section 5(2) of the 1981 Act was nonetheless a serious offence".[6]We accept that the observations in De Oliveira are equally applicable to the equivalent offences under the 2006 Act. It follows that sentencers must have regard to whether a particular offence of possession of a false identity document has been charged under subsection (1) or (5) and must bear in mind in the latter case that Parliament has seen fit to set a much lower maximum term.[7]However, it does not follow that sentences for offences under subsection (1) will invariably be at a higher level than any offence under subsection (5). As De Oliveira itself illustrates, even simple possession will usually justify an immediate custodial sentence, notwithstanding a plea of guilty. Possession of false identity documents is, as the court there said, a serious matter. Proof or admission of a specific prohibited intent so as to bring the offence under subsection (1) is likely to make the offence more serious, but it may not always do so: Toulson LJ has elaborated this latter point also in Carneiro, and we need not repeat what he there says.[8]Nor do we believe that it follows from De Oliveira that it is irrelevant for a sentencer to take into account that no innocent explanation for the possession of the forged document has been volunteered. Even where a specific intent is not an ingredient of the offence charged, the purpose for which the defendant has possession of a false identity document is in principle material for sentencing purposes. A demonstrated innocent purpose (difficult though it may be to conceive of such a purpose in the normal type of case) would certainly be regarded as material in these circumstances, and we can see nothing wrong with the judge in the present case pointing out that no such purpose had been alleged and drawing the common sense conclusion that the appellant's possession was not innocent. We note also that he made the point that he did in response to submissions apparently forcefully urged on him by Miss Onuzo asking him to attach significance to the fact that actual use of the card had not been made.[9]We are not therefore persuaded by that aspect of Miss Onuzo's submissions to us that the judge showed an error in his approach. She did, however, have a further point. Given the appellant's immediate admissions and plea of guilty at the earliest opportunity, the sentence of 15 months' imprisonment imposed by the judge was very close to the maximum sentence available to him once the discount for an early plea was taken into account. We cannot see that there were any features in the present case that justified treating it - as the judge in practice did - as being at the very top of the scale of seriousness for an offence under subsection (5). On the other hand, the appellant was not, like the defendant in De Oliveira, a man of previous good character. On the contrary, he was a recently convicted and only recently released robber. Having regard to all the circumstances, we believe that the right sentence in the present case is one of 12 months' imprisonment and we allow the appeal to that extent.