Jeffrey-Payne, R. v [2018] EWCA Crim 1379

[2018] EWCA Crim 1379

Case No 201705033 A3/201705073 A3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 6 June 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE SIMON

MR JUSTICE GOOSE

THE RECORDER OF AMERSHAM - HER HONOUR JUDGE CUTTS QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

NATHAN JEFFREY-PAYNE

REMY RANKIN

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr A Taylor-Camara appeared for Appellants

J U D G M E N T (Approved)

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[1]MR JUSTICE GOOSE: On 20 October 2017, Nathan Jeffrey-Payne and Remy Rankin, both aged 28, were sentenced by His Honour Judge Simon in the Crown Court at Blackfriars for offences of conspiracy to supply articles for use in fraud, being count 1; and conspiracy to commit fraud by false representation, being count 2, each offence being contrary to section 1(1) of the Criminal Law Act 1977. Nathan Jeffrey-Payne pleaded guilty at the start of the trial, while Remy Rankin was convicted by the jury.

[2]His Honour Judge Simon sentenced the appellants as follows. Nathan Jeffrey-Payne was ordered to serve 5 years and 4 months' imprisonment on count 1 and 6 years and 9 months' imprisonment on count 2, both sentences being ordered to run concurrently. Remy Rankin was ordered to serve 6 years' imprisonment on count 1 and 7 years' imprisonment on count 2, both sentences also being ordered to run concurrently. Each sentence was made subject to time served on remand being deducted from the custodial term to be served and orders were made for forfeiture and destruction under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 27 of the Misuse of Drugs Act 1971.

[3]Other defendants who had previously pleaded guilty were sentenced to lesser custodial terms and their sentences do not affect the issues that arise in this appeal.

[4]Both of the appellants have been granted leave to appeal by the single judge and are represented today by Mr Taylor-Camara, who has made his submissions admirably and succinctly.

[5]The appellants, Nathan Jeffrey-Payne and Remy Rankin, were involved in systematic defrauding of Transport for London using cloned Oyster cards. The conspiracy involved the appellants, together with many others, in a sophisticated and long-running fraudulent enterprise. There were two aspects to the offending represented in counts 1 and 2. Firstly, the conspiracy to supply articles for use in fraud and, secondly, the conspiracy to commit fraud by false representation. These offences required a detailed and sophisticated knowledge of the operation of the system of Oyster cards used by Transport for London on the underground, bus and rail network system.

[6]Oyster cards first came into use in 2003 but the first generation of cards were not fully secure. In 2009, they were replaced by a more advanced and secure encrypted card. The previous cards, however, reminded valid and could be used on the system. The evidence proved that Remy Rankin involved himself in the searching of the system before the fraud began at the start of 2016. Whilst initially on a small scale, it increased rapidly. By obtaining the older Oyster cards, either by purchasing them on the internet or by requesting them from friends and contacts, 38 Oyster cards were obtained. Credit was then added to them by attending a passenger-use payment machine and making a payment. Once loaded with credit the card was then cloned many times producing thousands of copies all of which contained the initial credit of the cloned card.

[7]During the period of the conspiracies almost 32,000 cloned cards were produced using sophisticated software, blank cards and a copying machine which transferred copied data from the cloned cards to the blank cards. By way of example, one card - identified as card 19 - was cloned 3,701 and on its own in a single day generated £37,000 for the offenders.

[8]Each copy of the cloned card was given to others, described as foot solders during the trial, who presented the card to a passenger-operated ticket machine at an underground station. After deducting an initially paid deposit on the card the balance was then refunded from the machine. It was necessary for the fraudsters to act quickly with each cloned card before it could be stopped. By this process the total amount realised from the two conspiracies was a cash loss to Transport for London of £374,401.45. The trial judge described this as an operation on a very grand scale indeed.

[9]By July 2016, Nathan Jeffrey-Payne had received sufficient money by way of profits to exchange his vehicle for a more expensive one for £22,500, which he paid for in cash. The electronic device used to clone the cards was found in Nathan Jeffrey-Payne's vehicle on arrest and Remy Rankin's laptop computer provided evidence of his activity in researching the security defect in the original Oyster cards, as well as containing the necessary software for the cloning process. These conspiracies were in operation for a period of approximately 8 months.

[10]When entering his plea at the start of the trial, Nathan Jeffrey-Payne submitted a basis of plea in which he sought to contend that the fraud was the idea of others and that he had been asked to become involved by them. That basis of plea was not accepted by the prosecution nor the judge and Nathan Jeffrey-Payne did not maintain it further, such that the judge was entitled to and did sentence him on the basis of the evidence without the need for a trial of any disputed issues.

[11]The antecedents of the appellants are as follows. Nathan Jeffrey-Payne is aged 28 and has eight previous convictions for 15 offences between 2005 and 2015, which offences include violence, dangerous driving, criminal damage and burglary. Remy Rankin is now aged 28 but he was 27 at the sentence, and save for a caution for possessing a class B controlled drug he is of previous good character.

[12]The grounds of appeal against sentence raised by Nathan Jeffrey-Payne and shared by Remy Ranki, are that the judge imposed a manifestly excessive sentence of imprisonment, above the starting point of 5 years, and should not have imposed a sentence of a higher category within the sentence guideline for fraud offences. Further, it is argued that the judge appeared to treat as an aggravating feature of the offence the fact that this was a conspiracy. Additionally, the judge failed to give sufficient regard to the principle of totality. On behalf of Remy Rankin, it is also argued in broad terms that the sentence imposed upon him was excessive in all the circumstances.

[13]In granting leave to appeal, the single judge gave leave for both appellants to argue that the judge, in passing a sentence in the highest sentencing bracket on count 2 imposed an excessive sentence. Further, the increase in sentence from the starting point in that higher category was also said to be arguably excessive.

[14]Whilst sentencing the appellants, the judge correctly applied two separate guidelines to the offences. Count 1, being conspiracy to supply articles for use in fraud, required the application of the guideline at page 13 of the Fraud Bribery and Money Laundering Offences Definitive Guideline. It is accepted by both appellants that the judge was correct to identify that this offence in their cases involved high culpability and greater harm, leading to a starting point at step 2 of the guideline of four and a half years, with a sentence range of 3 years to 7 years in custody. The factors of high culpability included the appellants' leading role in group activity, the sophisticated nature of the offence with significant planning and the fraudulent activity conducted over a sustained period of time. The greater harm factors were that a large number of articles were created and the offenders made considerable gain as a result of the offence.

[15]Once the starting point and category range were identified, factors increasing and reducing the seriousness were to be applied. The judge identified as an aggravating factor that this was a large-scale conspiracy. He stated at paragraph 5G:

"As regards the impact of the conspiracy on sentencing, I accept that there are cases in which the fact that the defendants have been charged with conspiracy can legitimately be argued to make no appreciable difference to the seriousness of the offences. In my judgment, this is plainly not such a case. This is not a glorified joint enterprise. This is a wide ranging, genuine meeting of minds, bringing together different people with different tasks at different ranks within the 'organisation' so to speak. Each person is aware of his role and, more that than, had at least a fairly good idea of the extent of some of the other activity involved."

[16]The judge also took into account that this was a fraud on the public service and, after the discounting for the guilty plea of the first appellant and the discounting of the good character of the second appellant, he imposed a sentence of 6 years' imprisonment on count 1 for both appellants.

[17]On count 2, an offence of conspiracy to commit fraud by false representation, the correct guideline is at page 5 of the Definitive Guideline and was applied by the judge. The culpability factors identified in respect of count 1 applied equally to count 2, such that this was a high culpability offence. Harm being the loss, caused or intended, provided for this offence to fall within category 2, based on a starting point of £300,000. The loss in this case, however, was in excess of that figure at £375,000, although it was not at the top of the range. It does not appear from the sentencing remarks that the judge applied any adjustment for harm B, such that the starting point under the guideline was 5 years, with a sentencing range from 3 years to 6 years' custody. The judge in sentencing stated at page 7H:

"On Count 2, again you fall into high culpability, category two, with a starting point of five years, and a range of three to six years. But in this regard, I have to take account again not just of the scale, the length of time, the fact that it was a conspiracy and also the fact that you were in breach of your community order. All of those push, in my view, the starting point based only on £375,000 taking all of those matters into account, in my view that pushes your case up into the next bracket, and that the appropriate sentence is one of seven years and six months."

[18]Those were the comments in respect of the defendant Jeffrey-Payne, who committed these offences when he was the subject of a community order.

[19]Although the judge described his starting point as being "based only on £375,000", this appears to be an error because category 2 is based on a starting point of £300,000. The correct position appears to have been in the mind of the judge, however, because he treated the actual loss of £375,000 as being a significantly aggravating feature on the seriousness of the offence.

[20]The judge then adopted the sentence of 7 years and 6 months on count 2 for both appellants before reduction for guilty plea in the case of Nathan Jeffrey-Payne and mitigation of sentence due to previous good character for Remy Rankin.

[21]The first ground of appeal argued on behalf of both appellants is that the judge was wrong to impose a sentence on count 2 that was based on category 1A having raised it from category 2A. Further, it is argued that the judge failed to take into account sufficiently the principle of totality. Taken together or individually, it is argued that the sentence imposed on count 2 was manifestly excessive.

[22]In imposing sentence, the judge made clear that he was to make the sentence on counts 1 and 2 concurrent with each other. However, he also made clear that these two offences contained different conspiracies. Firstly, to create and supply the articles for use in fraud and, secondly, to use them by false representation to obtain large sums of money. Having correctly applied the relevant guideline to each offence to arrive at the sentence within the relevant range, the judge was correct when imposing the overall sentence for the two conspiracies, to pass a custodial sentence in the higher category for which the starting point was 7 years' custody. The judge was also entitled to find on the evidence that the appellants were to be treated equally in sentencing on count 2 and imposed identical sentences before adjusting for the guilty plea and good character.

[23]We do not find that adopting a sentence on count 2 which was 6 months higher than the starting point created a manifestly excessive sentence. The judge expressly took into account the principle of totality when imposing concurrent sentences on two separate conspiracy offences. We do not consider that when the judge made no further adjustment to the individual sentences on totality, he created a manifestly excessive sentence on either count on the indictment.

[24]Further, we do not find favour in the argument that the judge was not entitled to treat the nature of this conspiracy as an aggravating factor to sentence. The judge made clear that the fact of the conspiracy itself is not an aggravating factor but in the circumstances of these offences, where so many people were involved, plainly it made the offences more serious.

[25]In conclusion, we have considered carefully the grounds of appeal against sentence, attractively argued by Mr Taylor-Camara, by both of these appellants and are not persuaded that the sentences imposed were manifestly excessive or wrong in principle.

[26]Accordingly, we dismiss these appeals. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk