Cakraj, R. v [2007] EWCA Crim 366

Case No 2006/5128/A4[2007] EWCA Crim 366
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6 February 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MRS JUSTICE COX DBE
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
LULZIM CAKRAJ
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 H FRENCH appeared for APPELLANT
J U D G M E N T
[1]MRS JUSTICE COX: On 25th August 2006 at the Canterbury Crown Court, the appellant, now aged 31, pleaded guilty to one count of possessing a false passport with intent, contrary to section 25 of the Identity Cards Act 2006. Subsequently, on 15th September, he was sentenced to a term of two-and-a-half years' imprisonment, less the 32 days spent in custody on remand. He appeals against that sentence by leave of the single judge.[2]The facts were these. At 6.30 pm on 12th August 2006 French Officers at the Cheriton Terminal of the Channel Tunnel stopped a coach as it was leaving the United Kingdom and heading for France. The appellant was a passenger on the coach. He presented a Slovenian passport which bore a false name and details and which was plainly, in the view of the officers, a forgery.[3]When questioned the appellant immediately made full admissions. He said he was an Albanian national and that he had bought the forged passport in Tirana for 1,300 Euros. He was arrested and interviewed with the assistance of an interpreter. He explained that he had had the passport for two years and had worked in Ireland and then in London under the false name. He was in fact returning to Albania when he was detained. He was dealt with at court as a man of previous good character.[4]When sentencing him, the Recorder described this as a very serious offence for which the maximum sentence is 10 years' imprisonment. Credit was given for the guilty plea, which he accepted was made at the earliest opportunity. The Recorder then made the following remarks:
"It is also said that you are a man of good character, a man who has committed no offence, and whilst it is correct in the sense you have no convictions, you clearly committed offences when you arrived in this country and offences when you worked on the basis of your bogus passport. You, over a lengthy period, showed a total disregard for the immigration law of this country."
He then expressed the view that this case was much more serious than that of Kolawole [2004] EWCA Crim. 3047, to which his attention had been drawn, and that it was necessary in cases like this for deterrent sentences to be imposed because it was so easy to get away with this sort of offending. He then repeated his observation that the appellant had shown no regard for the law over a lengthy period of time. He considered that a sentence of two-and-a-half years' imprisonment was therefore appropriate to mark the gravity of this offence.[5]On the appellant's behalf, Mr French submits that this term was manifestly excessive. He contends essentially that(a) the Recorder's sentencing remarks indicated that he was sentencing the appellant for offending that went well beyond the Crown's case on the count charged on the indictment,(b) the Recorder failed properly to apply the guidance given by this court in relation to sentencing in such cases, and(c) in the absence of a pre-sentence report, the Recorder failed sufficiently to have regard to the appellant's background and distressing personal circumstances.[6]In relation to the relevant background, counsel had advanced in mitigation the following factors which were not in dispute. The appellant, born and educated in Albania, and a single man without children, had come to the United Kingdom via Ireland in 2005 in order to obtain work and thereby money for his family in Albania. He had bought the false passport in Albania knowing it to be a forgery. Whilst working in the construction industry in the United Kingdom, he had paid tax on the money he earned. He had decided to return home to Albania at the time he was arrested because his mother was ill and he needed to support his family. A pre-sentence report now before this court refers to the risk of him reoffending as low. He is, in addition, now suffering from ill health.[7]The Recorder was right to refer to this as a serious offence which merited a deterrent custodial sentence and Mr French does not submit to the contrary. In the case of Kolawole the former Vice President giving the judgment of this court reviewed a number of authorities dealing with the offence of possessing a false instrument with intent, then charged under section 6 of the Forgery and Counterfeiting Act 1981, for which the maximum sentence was 10 years' imprisonment, as is the position now for the offence charged under section 25 of the 2006 Act. He emphasised the considerably greater culpability of couriers of false passports or of individuals who are found, when detained, to be carrying more than one passport or to be operating as part of an organised group. The reference in the case of Dhajit Singh [1999] 1 Cr.App.R (S) 490 to a sentence in the range of six to nine months being appropriate in cases involving the use of a false passport, related only to a case involving the use of a single false passport by an individual who was acting on his own. Further, recent international events and increased public concern now justify deterrent sentences at a higher level than was appropriate in 1999 when Singh was decided. For a case involving the possession of a false passport with intent, the appropriate sentence, even on a guilty plea, by a person of good character should now usually be within the range of 12 to 18 months. We agree with Mr French's submission that this guidance applies equally to the offence now charged under section 25 of the 2006 Act.[8]In our judgment, in describing this case as much more serious than that of Kolawole, the Recorder was in error. Kolawole was found in possession of both a forged Nigerian passport and a stolen British passport and the total sentence of 16 months' imprisonment for the possession of two passports with intent was upheld. The present case involved a single passport by a man who was clearly acting alone. Further, in describing it as more serious because the appellant had committed offences after his arrival in the UK and over a lengthy period of time, the Recorder appeared to have taken into account matters which were not the subject of any count on the indictment and for which this appellant did not fall to be sentenced. In this too we consider that the Recorder was in error.[9]In the circumstances and having regard to the mitigating and background factors the term of two-and-a-half years was, in our judgment, manifestly excessive. We therefore quash that term and substitute a term of 12 months' imprisonment. To that extent and for those reasons this appeal is allowed.