Gulam & Ors, R. v

Lord Justice Moses: These are appeals against sentence in respect of three appellants who became involved in a serious fraud on the Department of Work and Pensions. So serious was it that one of the appellants Dinara Begum, a young woman of 24 and of previous impeccable character, was sentenced to prison for as long as 40 months. She received that sentence in June 2006 at Croydon Crown Court. The other two, who had not set up the fraud but had taken advantage of it, Maksud Ahmed, a young man again of impeccable character and 26 years old, received two years' imprisonment and Amrud Gulam 23, the youngest and again of impeccable background, nine months' imprisonment. Those sentences demonstrate how serious this case was. For it was, indeed, serious.

Dinara Begum was employed at the Department of Work and Pensions, working at the Hackney Job Centre Plus. She had the particular responsible task of issuing cheques for those who needed benefit monies in an emergency. She had to give advice, liaise between customers and, importantly for the purposes of this appeal, provide cover for those instruments of payment which had gone missing, such as Giro cheques or order books. In order to meet the needs of those who had lost such instruments she could write handwritten Giro cheques, locally, so as to meet the emergency. She chose to start forging such Giro cheques so as to enable a number of co-accused to take advantage of the payments. She received financial advantage and so to a much smaller extent did others, particularly Muksud Ahmed, the second of these appellants, who split the proceeds he received 50/50 with Begum. Between a period of nearly a year, that is between July 2004 and June 2005, Dinara Begum issued a total of 21 Giro cheques to six co-accused and at least two further payments to others. Towards the end of the period she wrote out Giros for larger payments. They were stopped before any actual money had been issued. The people to whom she gave the money paid it into their bank accounts which made it not difficult to trace. But the total lost over that period of nearly a year was something just under £100,000, some £98,758, and the total of the failed attempts £141,532.

One of the particularly aggravating aspects of her conduct is that in order to obtain approval of the transactions, because, not surprisingly, they had to be counter checked by another employee, she used the names of real employees. It is true that there is no evidence that they were ever questioned about the matter, but she ran the risk that they could fall under suspicion. She also used the names of non-existent employees. Another aggravating feature of her behaviour is that she dragged in, by presenting them with the temptation, people who otherwise, we are quite satisfied, would never have got into trouble at all.

The ground of the appeal advanced fully but cogently by Mr Mullan is that when one looks at similar cases, and in particular those intended to provide guidance to sentencing judges, the starting point which must have been applied by the judge was too high. Since she received three and a half years' imprisonment, the starting point must have been, since she pleaded guilty and was entitled to full credit for it, something in the region of six year' imprisonment.

In support of that submission we were referred to a number of cases frequently cited in this field. We pause to observe, as has been so often observed in the past, that these cases are intended to provide the very thing they say they are intended to provide, namely guidance. They are not intended to put the sentencing process within a straitjacket. This judge had a full opportunity to assess the gravity of this offence in the context of sentencing a large number of other defendants.

The cases upon which Mr Mullan relies in particular are, firstly, Clark [1998] 2 Cr App R(S) 95 and particularly the observations of the Vice President at page 100, in which, in relation to sums involving the amounts with which we are concerned, the court said would merit a sentence in the region of three to four years on a contested case. Our attention was also drawn to a totally different type of case, serious mortgage fraud, such as Stewart (1987) 9 Cr App R(S) 135, where in respect of a very serious mortgage fraud involving some £1 million the sentence was reduced from six to five years.

We were also referred to what was described as a more serious case, Nwonga and others [1997] 2 Cr App R(S) 1. This case was said to concern a large scale professional fraud on the Department of Social Security. One of the fraudsters was an employee. It was said that the appropriate sentence on a plea of guilty was three and a half to four years' imprisonment and a sentence on a contested trial would be of the order of six years. It was said that this case was far less serious, involving less sophistication.

That may be true. It is also true that there was strong personal mitigation. It does not appear that Dinara Begum was indulging in this behaviour in order to live a life of luxury. Her home life, as all the evidence revealed, was extremely difficult. She was under great pressure as a result of the behaviour of other members of her family not least because she had in the past been the victim of an abusive relationship. It was to her credit that she held down a responsible job.

The judge was bound to have sympathy for those personal circumstances. He was also bound to take into account the fact that before she was arrested it appears she had ceased this fraudulent activity; we were told some four months before she was arrested. All that is powerful mitigation to be coupled with the fact that she pleaded guilty.

Nevertheless, we reiterate that looking at other cases provides no more than guidance. It provides guidance as to whether this case was so wholly out of line in relation to the judge's starting point as to require this court to say the sentence was manifestly excessive. It is only if the sentence is wholly out of line that this court can and should interfere. In our judgment, it was not. This was a serious sentence which is going to have significant impact upon this young woman. She is pregnant. She will have her baby in prison and she will be deprived of the company of that baby for much longer than she would, had the sentence been shorter. But we reiterate, this is not merely a case of interfering with benefit money. This was a case of a civil servant, entrusted with serious responsibilities, able to draw cheques by hand in an emergency, of which she took advantage.

We take as serious a view of this case as did the judge. She persisted in that conduct over a very considerable period and the losses were significant, as were the totals that she attempted to abstract. We take a particularly serious view of the consequences of her behaviour, dragging into this fraudulent activity those whom, we have no doubt, would otherwise have not been tempted to commit crime. In those circumstances, although we acknowledge that this was a significant sentence, right at the top of the permissible range, the judge cannot be faulted in any way in which this court can interfere. Her appeal is dismissed.

We turn then to the case of the next appellant, Maksud Ahmed, who was sentenced to two years' imprisonment. We have already identified the amounts which he abstracted. It was something in the region just under £30,000. He pleaded guilty. He was, as we have said, of previous good character and there was substantial personal mitigation as spoken of in the character references given on his behalf and in the pre-sentence report. Prison was inevitable, but the question remains as to whether 24 months was too long having regard to the fact that he had not initiated this offence and could not be described as the hub of the fraud.

In our judgment, 24 months' imprisonment was longer than was necessary. An appropriate sentence on his plea of guilty would have been one of 18 months' imprisonment. In those circumstances, with that reduction of six months' imprisonment, this appeal is allowed.

As we have already indicated, the judge was in the best position to consider the responsibility and the appropriate sentence for all these appellants because he had all these appellants in front of him. We must bear that mind when we consider the youngest of these three appellants, Amrud Gulam, now aged 23. He had been involved for the period of just over one month, taking money by means of two cheques involving a total of £9,900. There was particularly strong personal mitigation in his favour. He came from a family of which the parents could not assume responsibility for the children's education in the sense of communicating with the schools in English and they were in ill health. So this young man found himself effectively acting as the head of the family. He had to earn money and he tried to do so, although we understand it was by means of a number of business attempts which failed. But, notwithstanding that, he sought to better himself by going, first of all, to university at Greenwich. He could not continue that because he had to work to look after his family. He then enrolled in a course at Queen Mary's College but was arrested after finishing one year out of a two year course.

In the light of that personal mitigation the question arises, so Miss Cottee submits in excellent submissions on his behalf, whether it was appropriate to send him to prison at all. Having regard to the source of the funds and the amount taken, we take the view that the judge was entitled to say that this case passed the custody threshold. We then have to consider whether in the light of the personal mitigation nine months' imprisonment was manifestly excessive. We hasten to say that we do not think it was. It was a harsh sentence. It might have been lower, but we cannot say that it was manifestly excessive. As we have already said, the judge was able to view his case in the context of the cases of all the other defendants and was therefore best place to attribute the correct responsibility and represent that in the sentence which he passed.

However, there is one feature that will lead us to allow the appeal to a limited extent. In allowing the appeal we wish to emphasise that we are not saying that the judge was wrong. But we understand that this appellant is now at home tagged; in other words, under a home curfew. In those circumstances the question arises whether there is any point in interfering at all, but we are told, and we accept, that there is. We are told that he is having to work during the day and term starts at Queen Mary's College in October. He will not be able both to work during the day as a waiter and go to college when required if he remains tagged. In those circumstances we think it appropriate to adjust the sentence so as to enable him to work during the day, if he has to do that, and also attend Queen Mary's College so that he can undertake the second year of his course. We think that of great importance to him.

In those circumstances, we propose to allow his appeal by reducing the sentence of nine months' imprisonment, for the reasons we have given, to one of six months' imprisonment with a view to ensuring that he no longer remains tagged in October. If for some reason that does not have that effect, then we hope that the Home Office takes cognisance of our observations and ensures that he is not tagged by October so that he can both work and attend college. To that limited extent and for that reason we allow his appeal.