Kolawole, R v

J U D G M E N T

1. THE VICE PRESIDENT: On 5th July 2004 at Tower Bridge Magistrates' Court, this appellant pleaded guilty to a number of offences and was committed to the Crown Court, under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, in relation to two offences of possessing a false instrument with intent and, under section 6 of the same Act, in relation to offences of driving without a licence and without insurance. On 27th August, at Inner London Crown Court, he was sentenced by His Honour Judge Prendergast, in relation to the offences of possessing a false instrument with intent, to 8 months' imprisonment on each offence consecutively. Those offences being laid as being contrary to section 5(1) of the Forgery and Counterfeiting Act 1981 and each relating to a false passport. It is to that aspect of the sentencing producing, a total sentence of 16 months' imprisonment, that this appeal, by leave of the Single Judge, is directed.

2. The facts were that at 8 o'clock on the morning of 3rd July 2004 the appellant was seen in the Old Kent Road driving a motorcar erratically. Police officers stopped the car to speak to the driver. He was asked to produce identification. He produced a provisional driving licence in the name of 'Johnson' and, when asked where he lived, he said the Old Kent Road. The officers noticed that the address on the licence was an address in Bolton and there were other matters which gave rise to informed curiosity on their part as to the accuracy or otherwise of the information provided by the appellant. At the police station to which the appellant, having been arrested, was taken, he was searched. He was found to have in his possession one forged Nigerian passport and one stolen British passport in the name of Johnson. The appellant's photograph had been inserted into the forged Nigerian passport. The British passport, in the name of Johnson, contained the appellant's photograph. He said in interview that he had paid someone £100 in Nigeria to forge the Nigerian passport because he needed some photographic identification. The British passport, he said, belonged to his deceased elder brother in Nigeria. But he was not able to provide any proof that such a brother existed.

3. The learned judge, in passing sentence, paid due regard to the early guilty pleas and stressed that passport offences were serious and on the increase. Custodial sentences were appropriate and, indeed, consecutive custodial sentences were appropriate.

4. The appellant was born in September 1975 and has no known previous convictions. There was a pre-sentence report before the learned judge, which recognised the likelihood of a custodial sentence, but assessed the risk of the appellant re-offending as being low.

5. On behalf of the appellant, Mr Jones referred to a number of authorities and advanced the general proposition that, in this case, it was bad sentencing practice to impose consecutive sentences in relation to the two different passports. The Court has considered a number of authorities: R v Dhajit Singh [1999] 1 Cr App R(S) 49O; R v Siliavski [2000] 1 Cr App R(S) 23; R v Cheema [2002] 2 Cr App R(S) 356; R v Balasubramaniam [2002] 2 Cr App R(S) 57 and R v Stanca [2004] 1 Cr App R(S) 265. On those authorities three comments are appropriate:

(1) It is apparent that they have not always distinguished as clearly as perhaps they should between the three different offences commonly charged in relation to false passports under the Forgery and Counterfeiting Act 1981, the maximum sentences for which are not all the same. By virtue of section 6 of the Act, the maximum for using a false instrument, contrary to section 3, (of which Singh and Balasubramaniam provide examples), and for having a false instrument with intention it shall be used, contrary to section 5(1, (of which Siliavski , Cheema and the present case provide examples), is 10 years' imprisonment. The maximum for having a false instrument, contrary to section 5(2, (of which Stanca provides an example) is 2 years' imprisonment. (2) There is a passage towards the end of the judgment in Daljit Singh , at page 493, which is not as precisely expressed as it might have been, and this may have led to some misapprehension, particularly by the Court in Siliavski . The passage reads:

"Cases involving the use of false passports will almost always merit a significant period in custody... usually within the range of 6 to 9 months even on a guilty plea by a person of good character."

It is apparent from the facts of Daljit Singh , from the facts of the other authorities there cited and from other passages earlier in the judgment, that the issue being addressed in Daljit Singh was the use of a passport. It was for such conduct that the level of sentence identified was suggested. The Court in Siliavski may have been misled by the passage in Daljit Singh which we have cited. In consequence, the level of sentence indicated in Siliavski , namely 6 months is, in our view, an inadequate reflection of the culpability of that appellant, who, on arrival at Heathrow, was carrying no less than four false passports, hidden in his trousers.

(3) We agree with the further criticism of Siliavski made in paragraphs 11 and 12 of the Court's judgment in Cheema and with the comments on Siliavski in paragraphs 6 to 8 of the judgment in Stanca . Siliavski should not be recorded as authoritative as to the level of sentence appropriate for couriers of false passports. Cheema is the more appropriate guide, subject to the comment which we are about to make in relation to increasing public concern.

6. In the present case the appellant was in possession of not just one but two false passports with intent, contrary to section 5(1). The sentence on him had to reflect this. Furthermore, international events in recent years and the increase in public concern which they have generated, justify deterrent sentences at a higher level than was appropriate 6 years ago, when Daljit Singh was decided. For this reason Balasubramaniam , in which the Court loyally followed Daljit Singh , should no longer be regarded as authoritative. For the Daljit Singh type of case, that is 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. In the course of his submissions to this Court Mr Jones accepted that the level of sentence indicated in Daljit Singh might now appropriately be raised.

7. It follows from what we have said that it cannot be said that 16 months for this appellant, in relation to two passports, was manifestly excessive. This appeal is dismissed.