Miller, R. v [2010] EWCA Crim 257

Case No 20095261/A1[2010] EWCA Crim 257
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 26 January 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE WYN WILLIAMS
THE RECORDER OF CROYDON
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DAVID MILLER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Shanahan (Solicitor Advocate) appeared for Appellant
J U D G M E N T
[1]THE RECORDER OF CROYDON: On 6th October 2009 at the Cardiff Crown Court, before Mr Recorder Roddick QC, the appellant was sentenced to a total of two years' imprisonment for three offences of passing or tendering a counterfeit currency note and one offence of having custody or control of counterfeit currency notes, the sentences to run concurrently. He had earlier pleaded guilty to all the offences. He now appeals against sentence by leave of the single judge.[2]The appellant is 27 years of age. On 3rd April 2009 a barmaid, who knew the appellant, was working in a nightclub when he came up to the bar with a £20 note and paid for a drink with it. Shortly afterwards he ordered another drink and rather than pay with the change she had given him, he tendered another £20 note. She thought that that was a bit strange and then recalled that a few days previously the club had been passed a number of counterfeit £20 notes, so she decided to check the two notes that the appellant had given her, and found that they had the same serial number. She informed the manager who went to another bar in the club where the appellant had tendered yet a third £20 note, again with the same serial number. The manager challenged him. The appellant asked how he knew that they were forged and the manager pointed out that they had the same serial number. The appellant responded by saying that he had been given the notes by a person downstairs. When they both went downstairs to look for the person the appellant could not find him.[3]The police were summoned and the appellant was arrested. When his home was searched three more forged £20 notes were recovered. When interviewed the appellant said that he had obtained the notes from someone with whom he had been doing a deal.[4]The appellant has a large number of convictions, including offences of dishonesty. A pre-sentence report suggested a suspended sentence order with requirements of supervision and unpaid work. There were two character references and a medical report on the appellant's mother who had a severe chronic back problem which meant that she was virtually bed-bound, with the appellant as her sole carer.[5]In his sentencing remarks the learned Recorder referred to the poor record of the appellant, although he observed that he had no previous offences for this particular type of offence. He had had numerous community disposals in the past and also served custodial sentences. Account was taken of the content of the pre-sentence report and his personal mitigation, his early guilty plea, his mother's welfare and the fact that he had proved a caring son for his mother over a long time. However custody was, in the learned Recorder's view, inevitable.[6]In his grounds of appeal and briefly before us today, Mr Shanahan submits that the sentence was manifestly excessive being out of kilter with previous sentencing decisions in this class of case. In support of his grounds he has referred us to the following cases: R v Howard (1985) 1 Cr.App.R (S) 320, R v Page [1991] 13 Cr.App.R (S) 426 and R v Wake [1991] 13 Cr.App.R (S) 422, although that said there are no definitive sentencing guidelines issued by the Sentencing Guidelines Council for this type of offence.[7]In the first of the cases, R v Howard, a sentence of two years' imprisonment was passed after a counterfeit £20 note was attempted to be passed and the appellant was subsequently found to have bought counterfeit currency to the value of £3,000. Lord Lane, Lord Chief Justice, in the course of the judgment of the court said:
"Perhaps the most important consideration in this type of case is the quantity of the counterfeit notes which are found in the appellant's possession, because that will demonstrate, with some degree of accuracy at least, the proximity to, or the distance from, the source of the notes which the appellant's position occupied. Quite plainly, from the quantity of notes in the possession of this man, he was somewhat near the source of the notes."
In R v Page a sentence of 12 months' imprisonment was upheld after an attempt to pass five counterfeit £5 notes, as well as being in possession of 195 such notes with a face value of £795. It is of note that in both these cases the appellants were of previous good character. Finally, in R v Wake 12 months' imprisonment was reduced to three months on a guilty plea, again by a man of good character, where the appellant passed two counterfeit £10 notes. There was here no reference to the appellant having any additional store of counterfeit currency. As the Lord Chief

Justice continued in R v Howard:

"It is a trite observation made in these cases, but nevertheless correct, that the issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless. It follows therefore that this type of offence is one which inevitably, in nearly every case, will require a custodial sentence."
We are of the view that an immediate custodial sentence in this case was inevitable. However, to have sentenced the appellant to two years' imprisonment on a guilty plea tendered at the plea and case management hearing, the judge must have taken a sentence in the region of three years' imprisonment as his starting point, which in our view was too high in all the circumstances of the case. Although the appellant had a long history of offending it was far from being the worse case of its type, with the tendering of three £20 notes within a short period of time and with but three additional notes being found at his home. The quantity therefore was low and from which it could hardly be contended, or at least it was unclear that this was an appellant who was close to the source of the notes. Given the low number of notes in this case, the early plea of guilty and the personal mitigation of the appellant which has been further emphasised to us this morning, and despite his long criminal record, we are of the view that the sentence of two years' imprisonment cannot be upheld in this case and is correctly categorised as one which is manifestly excessive. What we propose to do is to quash the sentence of two years' imprisonment and in its place substitute one of 15 months' imprisonment, that is to say on each count concurrent. To that extent the appeal is allowed.