Mabengo, R. v [2008] EWCA Crim 1699

[2008] EWCA Crim 1699

No. 2008/02180/A5, 2008/02185/A5, 2008/02183/A5, 2008/02182/A5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 18 June 2008

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Phillips of Worth Matravers)

MR JUSTICE GOLDRING

and

MR JUSTICE PLENDER

R E G I N A

- v -

MABENGO MABENGO

MBANGO LOMOKA

KAZADI SALANG

MANZAMBI BIRINDWA

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Mr P Davies appeared on behalf of the Appellants

J U D G M E N T

Between

MabengoDefendant

RCrown

[1]These four appellants are nationals of the Democratic Republic of the Congo ("DRC"). They are failed asylum seekers. Each has renewed his application for asylum.

[2]On 9 April 2008, at Cardiff Crown Court, each pleaded guilty to possessing a false identity document, namely a passport, with the intention of using it for establishing registrable facts about himself, contrary to section 25(1)(a) of the Identity Cards Act 2006. The maximum sentence under that provision is ten years' imprisonment. They were each sentenced to twelve months' imprisonment. The period of 22 days spent in custody on remand was ordered to count against that sentence. Each was recommended for deportation. They now appeal against sentence by leave of the single judge.

[3]The appellants arrived in this country at different times. Salang arrived in 2004, Birindwa in 2002, Mabengo in 2003 and Lomoka in 2002. They gained employment with a company called Euroclad. In December 2007 Euroclad reviewed the company's staff, specifically to see if they were eligible to work in the United Kingdom. Each appellant was found to have supplied a false passport in a false name in order to obtain employment. They were arrested in March 2008. They admitted their nationality and admitted that they were failed asylum seekers. As failed asylum seekers, they were no longer entitled to asylum seeker support or to obtain employment.

[4]The passports which they had produced (which were obvious forgeries) were Portuguese and in three cases French. Mr Davies, who represents all four appellants, told us that the reason that such passports were chosen was that they wished to create the impression that they were nationals of the European Union and therefore entitled to work.

[5]In his sentencing observations the judge set out the facts. He referred to various authorities which had been drawn to his attention. As to the basis of sentence that he proposed to impose, he said that there had to be an element of deterrence in a case such as the present as "more than at any other time in our history we are entitled to have full confidence in the passport system". He went on:

"The deterrent element of a sentence .... and the message it sends out is not intended just for those in other countries around the world but for those resident, both legally and illegally, in the United Kingdom, that the production, supply and use of false passports will always attract sentences of immediate imprisonment and, where the power exists, recommendations for .... deportation."

[6]Mr Davies makes two fundamental submissions. First, he submits that the length of the prison sentences was out of line with the authorities; such sentences would have been appropriate for someone who used a false passport in order to gain entry to the United Kingdom, not, as here, in order to obtain or retain work. Second, he submits that no order for deportation should have been made.

[7]As to his first submission, he relies in particular upon a decision of this court in R v Lindiwe Mutede

[2006] 2 Cr App R(S) 22

. In that case false letters of immigration were produced in order that the appellant could obtain work. She was lawfully in this country.

(S) 14, where it was said:

"9. In the guideline case of Kolawole this court was principally concerned with cases falling within section 3 and section 5(1) of the Forgery and Counterfeiting Act 1981. The Vice-President, Rose LJ, said: '.... 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 guilty plea, by a person of good character, should now usually be within the range of 12 to 18 months.' 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."

Mr Davies submits that these appellants had originally been permitted to enter the country; they used the false passports in order to maintain work; and they should therefore have been sentenced to six months' imprisonment.

[8]It seems to us that regard must be paid to the decision in Kolawole and that there is a distinction between the present case and that of Mutede upon which Mr Davies relies.

[9]The maximum sentence under section 25(1) is ten years' imprisonment. That is to be contrasted with the maximum sentence of two years for simple possession under subsection (5). While, as has been said on a number of occasions by this court, it does not necessarily follow that sentences under subsection (1) will be higher than under subsection (5), it is a relevant factor for the court when fixing the appropriate sentence. We do not accept, as Mr Davies submits, that the guidance given by this court in Kolawole is necessarily limited to the use of a false passport to obtain entry. In that case it is not clear why the appellant had the two false passports in his pocket. We do not take it that the short judgment of this court in Mutede was deciding a broad principle regarding passports and their use. We do not accept that the nature of the document itself is irrelevant. The possession and the use of deliberately created false passports is in the court's view a serious matter.

[10]These four appellants had failed in their applications for asylum. It may be that they had subsequently renewed them. They remained in the United Kingdom. They knew they could not work. In order to deceive and to avoid their true status being discovered, they used false passports. That is a matter which in our view merits a more serious penalty than that that was substituted by this court in Mutede. It seems to us that the judge was entitled to impose sentences of twelve months' imprisonment and that they were not manifestly excessive or wrong in principle. That aspect of the appeal therefore fails.

[11]We turn to the issue of deportation. The approach of this court was considered in R v Carmona

[2006] 2 Cr App R(S) 102

. In that decision the authority of R v Nazari

(1980) 2 Cr App R(S) 84

was considered. In giving the judgment of the court in Carmona, Stanley Burnton J (as he then was) said:

"The question for the court was whether the offence led to the conclusion that the continued presence of the offender was detrimental to the country."

He indicated that the fact that it was a first offence did not necessarily mean that deportation should not be ordered.

[12]Our attention was also drawn to R v Benabbas

[2006] 1 Cr App R(S) 19

. Other, more recent decisions of this court on facts similar to the present were not drawn to our attention.

[13]As it seems to us before the orders for deportation were made, the judge was required to carry out a careful balancing exercise: the seriousness of the offence of the defendant in question as against his mitigation. That was not, or insufficiently, done in our view. It is not something we are now able to do. We have limited information. We are left with no alternative but to quash the orders for deportation. It will be for the Secretary of State to decide what should happen to each appellant when he is released from prison.

[14]To that extent, and on its particular facts this appeal succeeds. ___________________________