R v Flore & Anor [2014] EWCA Crim 465

[2014] EWCA Crim 465Case No 201400557/A2-201400740/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 4th March 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SWEENEY
MR JUSTICE GREEN
Between
R E G I N ACrownIOANA FLOREDefendantIONUT BURADefendant
B e t w e e n
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 C Wasunna appeared for Appellant FloreMr M Troman (Solicitor/Advocate) appeared for Crown
J U D G M E N T

MR JUSTICE GREEN:

[2]There are before the court two appeals with leave of the single judge. The first appellant, Ioana Flore ("Flore"), pleaded guilty to one count of possession of articles for use in fraud contrary to section 6(1) of the Fraud Act 2006. He was sentenced to 12 months' detention. The maximum sentence for this offence is 5 years' imprisonment. Flore has one previous conviction for fraud and related offences. In June 2011 he was convicted of possessing controlled articles for use in fraud and was sentenced to a youth rehabilitation order, a curfew requirement for 12 weeks with electronic tagging and a requirement that he attend an attendance centre for 36 hours. Ionut Bura ("Bura") also pleaded guilty to the same offences and was sentenced to 10 months' detention.[3]The facts may by summarised quite briefly. The appellants are Romanian nationals. On 22nd November 2013 they were spotted by police in a Vauxhall Astra motor vehicle in Hanover Street, London. Flore was the driver of the car which was said to belong to his uncle. Bura was the front seat passenger. Police stopped the vehicle upon the basis that they had grounds to suspect that it had previously been used in the course of crime. The appellants were searched, as was the vehicle. On Flore the police found a Sainsbury's gift card which the police suspected may have had credit card details copied to the magnetic strip. The card was taken to a nearby ATM and the officers' suspicions were confirmed. That exercise demonstrated that the magnetic strip had been compromised and some third party's bank details had been added to it. On Bura's iphone, in the notes section, were entries containing sequences of four numbers. The police suspected that these were stolen PIN numbers. In the footwell of the vehicle police found a metal scraper and two bottles of glue. In the glove compartment they found double sided sticky tape. A second metal scraper was found in the pocket on the back of the front passenger seat. Both men were arrested.[4]At the police station a more detailed search was conducted. In the pocket of the body warmer of Bura was found an electronic slotted card reading device. It is clear, as the judge observed, that both men were equipped to engage in card fraud. They did not however make any admissions at the police station. Bura said in interview that he had only recently found the item in the body warmer and had no knowledge of how it got there and he had no knowledge of the items in the car in which he was a passenger. Flore gave a "no comment" interview but did submit a prepared statement denying the offence. Both men were remanded in custody. Both men pleaded guilty at the PCMH held on 6th December 2013.[5]Pre-sentence reports were prepared for both appellants. In relation to Bura, the PSR stated that he had significantly minimised his involvement and his knowledge of criminal activity. He had admitted that he and Flore were on their way to London to "make money". When he was asked to elaborate on how they would do this, he was unable to give any explanation. When asked about the equipment found on him and in the car, he said that the kit was simply in the vehicle and he did not know anything about it. The author of the report said that he was "extremely sceptical" about Bura's explanation and that in his view Bura assumed the court would be naive and would believe his story. The reporter stated also that Bura expressed limited understanding of the impact on victims of such frauds. He was assessed as presenting a medium risk of reoffending. He expressed no remorse.[6]In relation to Flore, the author of the PSR stated that Flore had given an explanation of events that was inconsistent with the evidence provided by the CPS. He stated he had found the Sainsbury's gift card. He denied any knowledge of the items found in the vehicle, stating they belonged to his uncle. He did accept that at the time he was in need of money and was experiencing financial pressures. The author concluded that Flore refused to take responsibility for the offence. Given that the prior history the author states:
"This offence is in line with an emerging pattern of pre-planned acquisitive offending."
The report also drew this conclusion:
"By the nature of the property recovered in the search, there is evidence to propose that the articles would be used, or were intended to be used, as part of a larger and more sophisticated fraudulent operation, suggesting that Mr Flore partakes in regular activities which encourage offending. The nature of the offence is dishonest and involves taking calculated risks."
[7]We turn to the sentencing judge's observations. The judge's remarks were succinct. He recalled the basic facts and then recorded the following matters relevant to sentence in relation to each of the appellants. As regards Flore the judge in particular took account of the following. That he had in his possession a Sainsbury's gift card that had already been cloned with the details of someone's bank details showing that "this was not just a one-off exercise". That he had shown no remorse. That he sought to minimise his role in the offence whereas in the judge's view, they both knew perfectly well what they were engaged in. That this was an endemic type of fraud in London. There was therefore a need for a deterrent sentence.[8]In relation to Bura the judge noted that incriminating articles had been found in his possession in particular in his body warmer. He pointed out that he falsely denied the offences in interview. He also took into account the lack of remorse, his attempts to minimise his involvement, his knowledge of what he was engaged in and the need to impose a deterrent sentence for this endemic sort of crime. The judge stated that Bura had no previous convictions. According to the printout of antecedents Bura in fact had a previous conviction for going equipped for theft and destroying property. According to this he was sentenced at Brent Magistrates' Court in December 2010 to a community order with a single requirement of curfew for 18 months. However it appears that during submissions Bura's counsel put the prosecution to proof of the previous convictions upon the basis of an alleged error in the printout relating to the appellant's date of birth. In these circumstances the prosecution did not seek to prove that Bura had previous convictions.[9]The judge concluded, broadly, in relation to both men that this was a sophisticated offence. He stated that in his view the two men had jointly concocted their stories to be given to the police. Both men were however given credit for their pleas at the PCMH and were given credit for time on remand. It was on this basis that the judge sentenced Flore to 12 months and Bura to 10 months' imprisonment.[10]We turn to the grounds of appeal and the relevant sentencing guidelines. It is said in relation to both appellants that the sentence was manifestly excessive by reference to the relevant sentencing guidelines. It is submitted that these offences fell within the lower category of seriousness in the guidelines and that the judge exceeded the range by a considerable margin without justification and in a manner which was inconsistent with previous case law. The Definitive Guideline for Fraud and Related Statutory Offences identifies two categories for this particular offence. The higher category is in relation to use of articles intended for use in an extensive and skilfully planned afraid. The starting point is 36 weeks' custody with a range of 6 weeks to 2 years. The lower category is in relation to articles intended for use in a less extensive and less skilfully planned fraud. The guidelines indicate that the starting point is a medium community order and the range is from a low community order to 26 weeks custody. This is of course for offenders with no previous record. The maximum sentence for the section 6 offence is 5 years.[11]It was submitted by the prosecution that these offences fell within the lower category. In his sentencing remarks the judge indicated that he was aware of the guidelines but he did not state into which category he placed the offences. Given the full credit for early pleas identified by the judge, the starting point for the sentences for each applicant was 18 months for Flore and 15 months for Bura. This placed the appellants above the lower category of offending and squarely within the higher category. According to the guidelines aggravating factors include planning, operating in groups or gangs, professional offending and an attempt to conceal or dispose of evidence.[12]Did the judge impose sentences which were manifestly excessive? We have had regard to the authorities cited to us. They show that every case must be decided upon its own facts. They are all examples of sentences of a lower level of severity imposed in circumstances said by the appellants to be roughly comparable to the present cases. They do show that where a judge seeks to impose a deterrent sentence, upon the basis that a particular type of offence is endemic in the locality, that this should be done on an evidence based approach and not anecdotally.[13]In relation to Flore, this appellant had a previous conviction for a similar offence. This is a significant point and demonstrated the previous punishment imposed upon him for similar offences in the past had not worked. Furthermore he was in the company of an accomplice. The judge concluded that the paraphernalia was sophisticated and he had failed to admit his guilt at the police station instead giving false and misleading information. The PSR revealed a lack of understanding and a lack of remorse. On this basis the offence would sit above the lower category of offending in the guidelines. There was no obligation on the judge to accept that this fell within the lower category simply because the prosecution so contented, if this was not in fact his view.[14]In relation to Bura, the judge seemingly took the view that there was little to choose between him and Flore and that they should be treated as the same save in relation to previous convictions. The one difference therefore that did lead to Bura receiving a lower sentence was that the judge treating him, perhaps fortuitously, as of good character. Bura accordingly received a sentence, prior to discount for early plea, which was 3 months less than that of Flore.[15]We take the view that the judge was essentially correct in treating both appellants in the same way. We agree the appellants were in this crime together and share a similar level of culpability. Thus far we can identify no error in the judge's analysis. Though we would observe that where as here it appears that the judge disagreed with the analysis of the Sentencing Guidelines expressed by both prosecution and the defence, it is desirable that the judge should say so and explain why in his sentencing remarks.[16]Where, with respect, we depart from the judge is in his conclusion that he was entitled to impose a deterrent sentence, because of what he perceived to be the endemic nature of the offences whether committed by Eastern European immigrants or indeed by anybody else. The principle is based upon the fact that the law proceeds by way of evidence not anecdote or what might be ill informed general sentiment. The decided case law shows that where a court wishes to impose a sentence which incorporates an element of deterrence, because of its supposed endemic nature in a particular locality, then this is perfectly permissible, provided that it is done upon the basis of proper evidence. In R v Oosthuizen [2005] EWCA Crim 1978, at paragraph 16 the Court of Appeal stated as follows:
"In the absence of such statistics or other evidence identifying particular prevalence in a particular area, a judge, however experienced in a particular area, should not make the assumption that prevalence of that offence is more marked in the area with which he is familiar than it is nationally."
The Court later, in same paragraph, stated:
"It follows that the learned judge was not entitled to impose, for reasons of local deterrence, a sentence higher than would otherwise be appropriate for that particular kind of offence by reference to national guidance."
[17]In this case the judge imposed the sentences, which included an element of deterrence, upon the basis that, in his view, this was an endemic crime throughout London and that a message needed to be sent that it would be visited upon with severer sentences than would otherwise be the case. However, he had before him no evidence to support his conclusion and as such he was not entitled to add to the sentence to reflect his view that there was a need for deterrence. We therefore consider that in this respect the judge erred and that it is appropriate to reset the sentences subtracting the deterrent element.[18]We therefore allow the appeals and in relation to Flore we substitute a sentence of 12 months with one of 10 months. In relation to Bura we substitute a sentence of 10 months with one of 8 months.