Seward, R. v

MR JUSTICE HENRIQUES: On 6th October 2004 the appellant, who is 31 years of age, pleaded guilty before the justices at Nottingham Magistrates' Court to eight offences of dishonesty. He was committed to the Crown Court for sentence on bail, where, on 3rd December 2004, he was sentenced by Mr Recorder Godsmark QC to two-and-a-half years' imprisonment for obtaining property by deception, three charges; two-and-a-half years' imprisonment for attempting to obtain property by deception, one charge; and for four charges of using a false instrument he was sentenced on each to two-and-a-half years' imprisonment. All those sentences were ordered to run concurrently. In granting leave the single judge observed that there was a paucity of authorities for this kind of offence. The kind of offence the learned single judge was referring to was identity theft, of which this is a typical example.

A man by the name of James Turner, the managing director of an oil company, had an account with Barclays Bank and he was the holder of a Premier card. Such card, as the name implies, entitled him to a higher credit limit. The appellant or someone with whom he was acting in concert made or caused to be made a phone call to Barclays Bank call centre in March 2004 pretending to be Mr Turner and asking for a Premier account card to be sent to a branch in Leeds. The card was duly sent, and, after production of a false driving licence in Mr Turner's name, the card was handed over by a bank employee to the appellant, who then signed the card with a signature which matched that on the false driving licence. At or about this time Mr Turner transferred the sum of £20,000 to the account, from which funds were to be drawn by the Premier account card. As to how or whether the appellant and his associates knew of that transfer of money the papers do not reveal, nor has Mr Crabtree been able to enlighten us. He concurred, however, in the suggestion that it could hardly be a coincidence that Mr Turner had very recently transferred £20,000 to the relevant account.

The money being in that account and the appellant being in possession of both a false driving licence and the Premier account card, he went to a branch of Barclays in Wakefield and drew £4,500 from Mr Turner's account. From there he went to Mansfield and obtained £5,500 from another branch of Barclays. He then went to Nottingham and attempted to draw another £5,000, but an alert cashier observed that the paper of the false licence was of poor quality and dubious appearance. The appellant was arrested after a brief struggle. None of the £10,000 was recovered.

A pre-sentence report recommended a drug treatment and testing order. There was a high risk of reoffending unless he addressed his addiction to drugs. An assessment report assessed him as suitable for a DTTO. A letter stated that he was due to go on a detoxification project, and two letters stated indeed that he was on a detoxification project. It appears that, as at the date of sentence, he had indeed just completed the detoxification course.

The grounds of appeal indicate that the sentence was manifestly excessive. Insufficient weight was given to his personal mitigation other than to credit for his plea. There was limited involvement in the overall fraud, both in terms of participation and anticipated benefit and the sums of money involved. The sentence was wrong in principle. Insufficient regard was paid to the recommendation for a DTTO, his drug dependence, personal mitigation and motivation to change, and his limited involvement in the overall fraud, both in terms of participation and anticipated benefit.

The appellant has had very considerable assistance from Mr Crabtree, to whom we are indebted. He pointed out that there is here a familiar tale of drug addiction: crime being committed to fund the drug addiction. We are reminded of the fact that back in 1999 the appellant was admitted to a rehabilitation programme at Milton House in Islington, where he completed the primary phase of treatment after four months, before moving to secondary care at Thornton House in Clapham for six months. That period of treatment was challenging but ultimately successful. The appellant remained drug free for over three years prior to a relapse in 2003. This is the first serious offence of dishonesty committed by the appellant. Two previous matters, shoplifting in 1999 and stealing from a motor vehicle in 1995, are comparatively insignificant when contrasted with the present offences. Further, he pleaded guilty at the first opportunity. He had been granted unconditional bail by the justices. He used the time on bail to good effect, completing the detoxification course, and did not commit any offences whilst on bail. He has served some seven months in custody.

A solicitor at Simmonds & Simmonds has attended court on a purely voluntary basis. He can vouch for the fact that the defendant's brother, who is an estate agent in Kensington, is of the state of mind that he will be able to find his appellant brother employment. There is a flat still available for him. His original address in Queen's Park in London is still available for him. Having regard to the time that he has spent in custody, we are invited to consider whether or not a reappraisal can now properly take place with a view to, assuming the appraisal is successful, a DTTO now being made.

The learned Recorder had two questions to ask of himself: firstly, was this an appropriate case for a DTTO; secondly, if not, what was the appropriate length for a custodial sentence? As to the DTTO, the Recorder expressed the view that these offences were too serious for such a course to be taken. It was a sophisticated fraud and he took the view that the appellant was the prime mover.

We have had regard to Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106. This authority consolidated and expanded on earlier guidance given in the cases of Robinson and Kelly. At H in the judgment in the Attorney-General's Reference, it was said by this court that a DTTO was unlikely to be appropriate for a substantial number of serious offences which either involved violence or had a particularly damaging effect on the victim and that there must be a degree of proportionality between offence and sentence so that excessive weight was not given to the prospect of rehabilitation.

Whilst the loss in this case will doubtless accrue eventually to the bank, the effect upon an account holder whose identity has been stolen is doubtless one of shock and alarm. It has serious implications for the banking system. As Scott Baker LJ said in the case of Odewale and others [2004] EWCA Crim 145:

We have concluded that these offences were indeed too serious by reason of the planning and execution and the prevalence of identity fraud to render a DTTO a proportionate response. The making of such an order would indeed give excessive weight to the prospect of rehabilitation and act as a potential incentive to those with a drug dependency to act in like manner when in reality a deterrent sentence was called for.

Having decided that there is no other method of dealing with the appellant other than by way of custodial sentence, we must turn to the length of sentence.

The case of Odewale is of little assistance. The loss to institutions in that case was between £500,000 and £650,000, with further unsuccessful attempts taking the value up to £900,000. Further, the principal offender had a previous conviction for conspiracy to defraud. In all cases involving money a good starting point must be Clark [1998] 2 Cr App R (S) 95, where Rose LJ, Vice President, updated the Barrick guidelines:

Identity fraud, however, is a particularly pernicious and prevalent form of dishonesty calling for, in our judgment, deterrent sentences. There was here an actual loss of £10,000, none of which was recovered even though stolen that day, and a potential loss of £15,000. It is the appellant's case that he was only the front man, acting on the instruction of others, he taking the risk by reason of the prevalence of CCTV cameras. It was inevitable that he and not others would be brought to justice. His position has been likened to the mule in drug importation cases.

We bear that in mind. We bear in mind, however, that there was limited cooperation on the appellant's part upon arrest. Initially he struggled and no details or assistance of any kind was given to the police with a view either to tracing the missing £10,000 or in any way to prevent a repetition of similar conduct. The sentence of 30 months was, in our judgment, a stiff sentence. It was clearly passed with a view to deterring others and it clearly reflected both the public's and the financial institution's extreme concern about the prevalence of this type of fraud. Accordingly, the sentence was justified. For those reasons, this appeal must fail.