Carneiro, R v

LORD JUSTICE TOULSON: This application for permission to appeal has been referred to the full court by the Registrar. We grant leave.

Rosiene Ribeiro Carneiro appeals against a sentence of six months' imprisonment imposed by His Honour Judge Cripps QC for two offences of possessing an identity document with intent contrary to section 25(5) of the Identity Cards Act 2006, to which the appellant had previously pleaded guilty.

The appellant is Brazilian. She came to the United Kingdom lawfully as a visitor and was granted permission to remain on the usual conditions, which included that she should not obtain employment. She overstayed. She obtained work as a cleaner but needed a bank account for her employers to pay her wages.

On 29th May 2007 she produced three forms of identification to open an account at a branch of HSBC in High Wycombe. The first document, the subject of count 1, was a Portuguese identity card in the name Renato Rodreguiz Breeto. The other documents were a gas bill and a salary slip. The bank accepted the documents as genuine and opened an account in the name of Miss Breeto.

On 12th July 2007 the appellant went to the bank to obtain a PIN number for the bank card she had been given. For this purpose she produced the same identification as before, and her production of the false Portuguese identity card gave rise to the charge under count 2. On this occasion staff were suspicious and called the police. She was arrested and interviewed. She immediately admitted that the Portuguese identity card was not hers, although it had her picture on it.

The preliminary hearing was turned into a plea and case management hearing, at which the appellant pleaded guilty on both counts. The judge expressed considerable sympathy for her. He indicated that if he had felt free to pass a suspended sentence, he would have done so, but he felt constrained by the authorities to which he had referred to impose an immediate custodial sentence, and he passed a sentence of 12 months' imprisonment concurrent on both counts. Subsequently his attention was drawn to the decision of this court in the case of Mutede [2006] 2 Cr App R (S) 22. In the light of that decision the judge had the case re-listed and reduced the sentence to one of six months' imprisonment on both counts. It is against that sentence which the appeal is brought, with the encouragement of the judge.

Section 25 of the Identity Cards Act 2006 creates three offences. Under section 25(1) it is an offence for a person with the requisite intention to have in his possession or under his control, among other things, an identity document that is false and that he knows or believes to be false. The requisite intention includes the intention of using the document for establishing registrable facts about himself. Registrable facts are defined in section 1(5). They include an individual's identity and address. Section 25(3) makes it an offence for a person with the requisite intention to make or have in his possession apparatus for the purpose of making false identity documents. Offences under section 25(1) and 25(3) carry a maximum personality on conviction on indictment of imprisonment for ten years.

Section 25(5) makes it an offence for a person to have in his possession or under his control, without reasonable excuse, an identity document that is false or improperly obtained. The maximum personality under section 25(5) on conviction on indictment is two years' imprisonment.

We have been referred to a number of cases under the 2006 Act or similar provisions under section 5(1) of the Forgery and Counterfeiting Act 1981, in particular Kolawole [2005] 2 Cr App R (S) 14; Oliveira [2006] 2 Cr App R (S) 17; Mutede [2006] 2 Cr App R (S) 22; Dogan [2007] EWCA Crim 110; and Adebayo [2007] EWCA Crim 878.

The circumstances of those cases differed in a number of respects. In some cases the charge was under 25(1), in others it was under section 25(5). Some involved passports, some involved other documents. In all cases custodial sentences were upheld, but the lengths varied. Certain distinctions have been drawn in those cases. For example, false use of a passport to obtain entry to the UK has been regarded as particularly serious. False use of another form of document to obtain employment after obtaining lawful entry to the United Kingdom has been regarded as less serious: see Mutede . A distinction has been drawn in general terms between an offence under section 25(1) and an offence under section 25(5) because of the markedly different maximum penalty imposed by Parliament: see Oliveira . However, it does not follow that the appropriate sentence in every case under section 25(1) must necessarily be greater than the appropriate sentence in any case under section 25(5). This point is illustrated by the decisions of this court in Oliveira and Mutede . Those were decisions by the same constitution a few days apart, and on the particular facts of those cases the court judged a higher sentence to be appropriate in the case under section 25(5) than under section 25(1).

Mr Heaton-Armstrong has not sought to argue that for an offence of the present kind it could generally be said that an immediate custodial sentence of six months' imprisonment was wrong in principle or manifestly excessive. He recognises that that would be an unrealistic submission in the light of previous decisions including Mutede , which perhaps has the closest resemblance of the cases cited in the present case.

In Mutede the defendant was before the court for offences under section 25(1) and obtaining a pecuniary advantage by deception. She was a lady of Zimbabwean origin of previous good character. She entered the UK lawfully but obtained false letters purporting to come from the Immigration and Nationality Directorate, which on their face gave her permission to stay and seek employment in the United Kingdom. She did so for the purpose of obtaining employment. On her guilty plea this court considered that a sentence of six months' imprisonment was appropriate.

It is right to consider why the courts have thought it necessary to impose immediate custodial sentences in such a case. The vice in a case such as the present is that the offender has obtained entry to the country on a specific and limited basis which prohibits the obtaining of employment. False documents are then used in order to breach that condition and obtain employment. It is all too easy to do and it is conduct which, if copied, is inimical to proper immigration control. It is also the fact that obtaining employment is the key to obtaining a National Insurance number and access to welfare benefits. It is not suggested in this case that this appellant acted with that intent, but it is part of the circumstances which require offences of this kind to be regarded as serious.

Against that context, the question arises whether this sentence ought to have been suspended, as is urged on us. Mr Heaton-Armstrong said that the factors which ought to have led to the sentence being suspended in this case were that this particular offender has in no sense been a drain on the economy. On the contrary, she has done work which was necessary and which others find uncongenial. Furthermore, she cuts a very sad figure and has a sad personal background, as set out in the pre-sentence report. These were clearly factors which moved the heart of the experienced judge in expressing the wish to have suspended the sentence if he felt that he could.

There is no absolute embargo on a judge suspending a sentence for an offence of this kind if there is proper ground to do so, nor is there any statutory requirement that there should be exceptional circumstances. However, once it is recognised that ordinarily the appropriate sentence for an offence of this kind does involve immediate custody, there has to be some good reason for the judge to act differently in a particular case for simple reasons of consistency.

Sympathetic as we too are to this appellant's plight, we cannot in all honesty see that they exist in this case. The fact that she was not a drain on the economy is a common factor in the case of people who are using false documents to obtain employment in order to support themselves while unlawfully in the country. The fact that the work being done is of a lowly nature again is what may be expected in such cases. The personal circumstances of this appellant are sad, but there is nothing in them which could really merit suspending the sentence on that account alone. Accordingly, we are driven to the conclusion that the sentence passed by the judge was as lenient as it could be in all the circumstances, and it was certainly not wrong in principle or manifestly excessive. For these reasons this appeal has to be dismissed.