Adebayo, R. v [2007] EWCA Crim 878

Case No 2007/00687/A4[2007] EWCA Crim 878
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 17 April 2007
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE BURTON
and
Venue THE RECORDER OF BIRMINGHAM
Between
R E G I N ACrown
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________
- v -
Between
ADEKUNLE ADEBAYO__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________MISS MARIA ELENA CANDILIO appeared for APPELLANT____________________J U D G M E N T
[1]On 15 January 2007, in the Crown Court at Snaresbrook, before His Honour Judge Pardoe QC, the appellant pleaded guilty to two counts of possession of an identity document with intent to deceive. He was sentenced to two years' imprisonment on each count concurrent and was recommended for deportation. He appeals against the sentence of imprisonment by leave of the single judge.[2]The facts of the case were that on 7 November 2006 the appellant went to an employment agency called Future Force. In order to show his entitlement to obtain work, he produced a National Insurance card and a Nigerian passport. By virtue of the diligence of the attendant at the agency it was concluded that the documents were fake. The police were contacted and the appellant was arrested. When asked whether he was legally in this country and how he came to be here, he replied, "I'm just trying to get a job and survive".[3]In interview the appellant's account was that he had entered the United Kingdom in 1997 (although there was no evidence to support that date). He said that he had come with a Nigerian passport, that he had lost the passport, had not reported it lost and had not tried to obtain another. He said that he had been referred to someone in 2002 (four years earlier) and had paid £2,500 for the two false documents which he produced in November 2006. When asked whether he had received any other such documentation, he said that he had also been given a Home Office letter but did not have it with him at the time of his arrest. He asserted in interview that he believed the passport was authentic. He admitted that he had used the passport and the National Insurance card to try to obtain a bank account via the internet.[4]The mitigation that was placed before the judge centred on the appellant's good character and on his plea of guilty, notwithstanding the initial stance taken in interview. However, Miss Candilio did not draw to the attention of the sentencing judge the two authorities on which she now relies, neither of which are guideline cases but both of which are of significance: R v Kolawole [2005] 2 Cr App R(S) 13 at page 71 and R v Mutede [2006] 2 Cr App R(S) 22 at page 161. Untutored by those authorities, the judge made no reference to authority in the sentence that he imposed. He said that the appellant was an illegal immigrant. He had obtained false documents from an acquaintance at the Mosque he attended for the payment of £2,500, who had used the documents in an attempt to obtain employment; they were flagrant offences; and the behaviour with which he was charged was precisely within the mischief that the Identity Cards Act 2006 (in breach of section 25 of which the appellant had admitted he was) was designed to prevent and to punish. Despite his early plea of guilty, a custodial sentence was inevitable and a term of two years' imprisonment was imposed.[5]The grounds of appeal, besides referring to his previous good character and his early guilty pleas, base themselves on the assertion that both documents were used at the same time and for a single purpose, namely to obtain employment. It was asserted that the facts of the case merited a lower threshold for sentencing. Two fortifications are put forward for that argument: first, the case of Mutede, upon which counsel has relied to support the primary proposition that the sentence should be six months' imprisonment; and second, the case of Kolawole, in which a bracket of twelve months to eighteen months' imprisonment was recommended by the Court of Appeal: Miss Candilio argued for a sentence at the lower end of that bracket.[6]In granting leave, the single judge mentioned three other recent decisions of this court in which reference was made to Kolawole: R v Dogan [2007] EWCA Crim 110; R v Adekayaoja [2007] EWCA Crim 584 and R v Cakraj [2007] EWCA Crim 766. Copies of those have been provided to us by the Court of Appeal Office.[7]We turn first to the question of whether a sentence of six months' imprisonment, for which Miss Candilio primarily contended, is arguably appropriate on the facts of this case by reference to Mutede. In Mutede the appellant pleaded guilty to possession of a counterfeit National Insurance card and counterfeit letters which were used to obtain employment in the United Kingdom whilst she was prohibited from doing so. It was accepted in that case that the appellant had a legitimate passport and a legitimate reason to be in the country, but that she had obtained the false immigration letters and the false National Insurance card to enable her to work in the United Kingdom. Having referred to Kolawole, in giving the judgment of the court Cresswell J said:
"10. It is, in our view, necessary to distinguish between using a false passport to obtain entry into this country or to remain here (as in the present case) using false immigration letters to enable a person who was permitted to enter this country, to obtain work here."
[8]We do not agree that Mutede leads to that conclusion or is a basis for lowering the tariff which is referred to in Kolawole, to which we shall come. Insofar as the Court of Appeal distinguished Kolawole, we are satisfied that it distinguished it on the primary basis that the use of a false passport is of very considerable significance to the security of this country and to the propriety of immigration laws. To use a false passport to enter the country is a serious offence, as was made clear by the Vice-President, Rose LJ (as he then was) in Kolawole. In Mutede the appellant had a genuine passport, but used false documents in order to obtain employment.[9]However, if and insofar as Miss Candilio relies upon a broader distinction to be drawn from Mutede, there is a favourable comparison for the appellant to be drawn between someone who uses a false passport to enter the country and someone who uses similar false documents to obtain employment, we do not agree. In Dogan at paragraph 4 in this Court I said:
"The representation made on his behalf today by Mr Hobson is that on this occasion the passport and false documents were not used to enter the country, and were attempted to be used for a different purpose as we have described [an attempt to open a bank account]. We can see no distinction in that regard. No doubt if they had been required to be used to enter the country, they would have been. In some ways at least it can be understandable that unlawful immigrants are desperate to get into the country and might use false documents, but not necessarily so understandable if they then used those same documents once they are here."
[10]In Kolawole, although not a guideline case, clear guidance was nevertheless given by the Court of Appeal in relation to an appellant who had not one but two false passports, although it was found inappropriate to pass a separate sentence in relation to each. In giving the judgment of the court, the Vice-President said that where a single false passport was being used (contrary to what was then the Forgery and Counterfeiting Act 1981, and it is apparent from the authorities to which we have referred that the present Act would lead to the same result), the appropriate sentence, even on a guilty plea by a person of good character should now usually be in the range of twelve to eighteen months. For that purpose, therefore, we can ignore the fact that it was two passports in that case, in the light of the words of the Vice-President which we have quoted.[11]This case appears to us to be indistinguishable from Kolawole. Miss Candilio has submitted that it falls towards the lower end of the twelve to eighteen months' bracket. She has referred also to Cakraj in which a sentence of twelve months was substituted for one of two-and-a-half years, which was found to be manifestly excessive on the basis that the sentencing judge had been in error in regarding the case as much more serious than that of Kolawole. However, in Dogan, where again the sentence was reduced by this court, the sentence that was substituted was eighteen months, in a case which seems difficult, if not impossible, to distinguish from the facts of this case. If anything, it is more serious to use false documents to seek to obtain employment than to open a bank account.[12]We see no basis upon which this case can be said to be at the bottom of the bracket; nor was Miss Candilio able to identify one when invited to do so. We conclude that this case falls within the bracket of twelve to eighteen months. Consequently, we consider that the sentence of two years' imprisonment was manifestly excessive. We quash the sentence of two years' imprisonment and substitute one of fifteen months' imprisonment, concurrent on each count. To that extent this appeal is allowed. There will be taken into account any time served in custody.[13]During the course of the hearing an application was made for leave to appeal out of time in respect of the recommendation for deportation. However, that application was withdrawn. If there are any matters to be raised by the appellant with the Home Secretary, that can be done (if he is in time to do so) on an appeal against any deportation notice served before the Asylum and Immigration Tribunal. _____________________________

Cited in 4 later judgments