Okhotnikov, R. v [2008] EWCA Crim 1190

[2008] EWCA Crim 1190Case No 2008/1454/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 14 May 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
IVAN OKHOTNIKOV
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)
Mr A Houston appeared for Appellant
J U D G M E N T
[1]MR JUSTICE TREACY: The appellant in this case is Ivan Okhotnikov. On 21st February 2008, having previously pleaded guilty, he was sentenced at the Crown Court at Southampton by His Honour Judge Burford QC in relation to four offences of possessing a false identity document. Those charges are brought under section 25 of the Identity Cards Act 2006. The judge imposed a sentence of two years' imprisonment on each count concurrent, with a direction that 91 days spent on remand should count towards sentence. On 29th February 2008, notices having been served, the judge recommended this appellant for deportation. Counsel appeals both against the length of the custodial sentence and against the recommendation for deportation.[2]The circumstances underlying the offending were as follows. Police were carrying out an operation in Southampton which involved the deployment of undercover officers. Two of those officers were Latvian nationals.[3]On 13th August 2007, following some telephone conversations and a meeting in a nightclub, they went to premises where the appellant worked. They discussed with him the acquisition of false passports. At that stage the appellant was quoting the price of £1,000 for what were described as "new style Latvian passports". The undercover officers did not agree at that stage to buy such passports but discussions continued. In the course of those discussions the appellant indicated that he could supply driving licences, false ones, of good quality for £180. There was also some discussion about whether cheaper false passports could be obtained.[4]There was a further meeting on 23rd August 2007 at the same premises. There was more discussion about the prices of false passports and false driving licences. The appellant informed the undercover officers that he had two Lithuanian passports available with dates of birth in the early 1970s. The undercover officers agreed that those would be suitable. Accordingly on the following day the officers met the appellant at his home. One of the officers produced some photographs to be inserted into the false passports and the applicant then took the photographs to be processed and inserted into those false passports.[5]A week later on 31st August 2007, one of the officers went to the appellant's home and was handed two sets of driving licences and passports. The appellant had been paid a total of £880 for the false documents. Enquiries made by the police revealed that the two passports had been reported as lost or stolen to the Lithuanian authorities earlier in 2007.[6]On 14th November 2007 the appellant was arrested. When interviewed he made no comment.[7]In sentencing this appellant the judge accepted that he was the middle man and dealer in this operation. There was a pre-sentence report available to the sentencing judge. It showed that this appellant, who was born in 1980 and so is 28 years of age, was a person without previous convictions and was assessed by the reporting officer as being at a low risk of reoffending. In addition there were favourable references handed in to the judge and we have seen today a report from prison compiled at some length which speaks in very favourable terms of the appellant's behaviour, progress and attitude whilst in custody. The report is prepared by a probation officer.[8]The submissions made by counsel as to the length of sentence are that the sentence of two years' imprisonment was manifestly excessive. Counsel commented in the course of his oral submissions today that the sentence was a little bit too steep - which of course would not be an appropriate basis for allowing an appeal against sentence, but we proceed on the basis that the submission is that the sentence is manifestly excessive.[9]The basis upon which sentence was imposed was that the £880 had been paid over to the actual makers of the passports and driving licences since the Crown could not prove that the appellant had benefited personally. The judge found that the appellant was a middle man in the operation. The false documents had not in fact gone into circulation because they were provided to undercover officers. However, it was plainly the appellant's intention that they should do so in order to enable the purchasers to settle in the United Kingdom or to enable others to enter the United Kingdom.[10]The appellant had the mitigation of an early guilty plea. He had no previous convictions. He had come to this country lawfully in the year 2000 with his family. He had attended university here for three years of a four year course before leaving for personal reasons. His parents had settled with him in this country and he was of help to them in their family business as a translator. The judge accepted that the appellant was remorseful and, as we have stated, there were a number of favourable references.[11]The judge considered the authority of Kolawole [2005] 2 Cr.App.R (S) 14. In that case a number of earlier authorities were considered. Kolawole is a case under the Forgery and Counterfeiting Act of 1981 where the maximum penalty for a section 3 or section 5(1) offence was 10 years. The offence contrary to section 25(1)(a) and 25(2)(b) of the Identity Cards Act 2006 also carries a 10 year penalty. Accordingly, Kolawole provides appropriate guidance in the present situation. In Kolawole this court having noticed the increase in public concern in recent years arising from the use of false documentation felt that an increase in deterrence was needed. Accordingly it held that even on a guilty plea by a person of previous good character, use or possession with intent to use of a single false passport would usually lead to a sentence in the range of 12 to 18 months. In Kolawole 16 months after a guilty plea relating to two false passports was upheld.[12]In the present case, there are additionally two false driving licences. This appellant was an important part of the proposed putting into circulation of these documents on a commercial basis. His involvement was over a three week period and to that extent persistent. His actions are suggestive of someone prepared to deal in false passports and other false documents on a wider basis. The fact the false documents did not go into circulation because they were sold to undercover officers is of little weight in mitigation given that the appellant had intended to and had done all that he could to bring about their unauthorised circulation. His intention was clearly that passports should be used either to gain entry to this country or to support residence in this country or both.[13]In our judgment the sentence of two years was undoubtedly firm but not to the extent of being manifestly excessive for the offending involved. Accordingly this aspect of the appeal is dismissed.[14]We now turn to the question of the deportation order. Counsel's submission to us is that the judge failed properly to apply the test of whether the appellant's presence was likely to be of detriment to this country in the future. Counsel submitted to us that the judge attached too much weight to the offence of which this appellant had been convicted and submitted that the materials before the judge failed to show that there would be a detriment from the continuation of this appellant's residence in this country. In supporting that submission counsel reiterated the favourable aspects of the appellant's conduct in this country and stressed to us that he had entered this country lawfully.[15]We have been referred to the decision of this court in Benabbas [2006] 1 Cr.App.R (S) 94. Giving the judgment of this court, Rix LJ said at paragraph 36:
"We have reviewed the authorities put before us ... so that we may consider in the round her [that is counsel's] submission that the sentencing judge in this case failed to have regard to the Nazari principle of paying attention solely to the question whether this appellant's continued presence here is a potential detriment to this country."
His Lordship continued at paragraph 37 in these terms: "The statutory discretion is in itself unfettered, but, answering the purpose of its context, the Nazari approach of looking to the detriment of the defendant's presence in this country is well established as providing the rationality which informs the discretion. Where the defendant's presence in this country is lawful and regular, the Nazari approach involves a relatively straightforward exercise of balancing the aggravation of the defendant's wrongdoing, present, past and potential against the mitigation which he can pray in aid, which includes the interests of his family. That balance may on occasions be a difficult one to find ... but the test and the elements in it are plain, and, subject to the interests of the family, personal to the defendant ... We say personal to the defendant, but of course the detriment still has to be judged by reference to the public interest and the requirements of public policy. As the ECJ put it in Bouchereau at para 29, what the courts are concerned with is "evidence of personal conduct constituting a present threat to the requirements of public policy".[16]It is in our view undoubtedly the case that involvement in the production or dissemination of false driving documents and passports to foreign nationals can be viewed as undermining the good order of society. A person who does that may be viewed as a threat and a detriment for the future by reason of his or her continued presence here. At paragraph 41 of Benabbas, Rix LJ spoke of the need for protection of public order afforded by confidence in a system of passports. We echo those views.[17]We have anxiously considered the situation in this case. The judge plainly had in mind the nature of the offending in this appellant's case and in particular the putting into circulation of false documentation which could only have the purpose of enabling others to flout the immigration legislation applicable in this country. What the judge had to do was to balance that offending against the personal and family circumstances of this appellant, taking into account the appellant's conduct in the past and looking forward to the future in order to make an assessment as to whether his continued presence in this country would be detrimental or not.[18]Having considered the way in which the judge approached the sentencing task we think he asked himself the right questions prior to forming his conclusion. He plainly had in mind the material which was favourable to this appellant. We are not persuaded in those circumstances that the decision which the judge made was plainly wrong and could not reasonably have been made. It may have been open to another court differently constituted to take a different view, but that is not the test to be applied. We have to ask ourselves if this judge was plainly wrong in what he did. We answer that question in the negative. The judge was in our view plainly entitled to conclude that this appellant's continued presence in this country would represent a detriment, notwithstanding the mitigating features relied upon. Accordingly this aspect of the appeal must also be dismissed.