W, R v

HIS HONOUR JUDGE ROOK: This is an appeal against sentence with the leave of the single judge.

On 13th July 2009 at the Northampton Magistrates' Court the appellant pleaded guilty to two counts of acquiring, using or having criminal property contrary to section 329 of the Proceeds of Crime Act 2002 and two counts of concealing, disguising, controverting or transferring criminal property contrary to section 329 of the Proceeds of Crime Act 2002. He was committed to the Crown Court for sentence. On 7th August 2009 at Northampton Crown Court the appellant was sentenced by His Honour Judge Bray to 14 months' detention in a young offender institution on each count to run concurrently.

On 27th August 2008 the appellant fraudulently assisted a man who was falsely holding himself out to be "Neil Carson" to open a joint account at Barclays Bank. The same day, using the telephone banking system, £12,000 was transferred from an account held by the real Neil Carson to this account and then transferred to the appellant's own account. That onward transfer of £10,500 was the subject matter of the first offence. The appellant then made two cash withdrawals of £5,000 each from his account at two different branches of Barclays Bank. The next day a further transfer of £16,000 was made from the legitimate Carson account to the false joint account. A few minutes later £15,000 was transferred from a joint account to the appellant's account. The same day the appellant attended a third branch of Barclays and attempted to withdraw £5,000. The manager became suspicious because of the various money movements. The appellant was asked to wait as they were having difficulty with authorisation of the withdrawal and police arrived at the bank.

Initially the appellant lied to the police, saying that he had set up a joint account with his stepfather and was withdrawing money for a trip. Later he admitted he was doing a favour for a friend.

The real Neil Carson knew nothing about the joint account or the monies being transferred from his account. In all £26,500 was transferred from the Carson account and £10,000 was successfully withdrawn by the appellant and an attempt was made to withdraw a further £5,000.

The appellant pleaded guilty on a written basis of plea which stated that he had been approached by a person he vaguely knew and asked to assist in setting up a bank account. He had agreed to do this on the basis that he would be paid a small amount. He had been taken to meet a man, who had introduced himself as Carson. Others were present and he felt quite intimidated. At this stage he suspected the scheme was not wholly lawful but felt unable to extricate himself. He had been driven to two branches in Northampton and withdrawn £5,000 at each. He had handed over the money and had received nothing in return.

In a pre-sentence report dated 9th July 2009, the appellant explained that he had been struggling financially at the time of the offences. He had been associating with people who committed this kind of fraud. He was aware that he had done wrong but felt bad for the victim and appreciated this type of offence had an impact on others. He was regarded by the author of the report, Kimberley Bond, as a low risk of re-offending. He was considered to be motivated to engage with probation and indeed a suspended sentence with a supervision order was recommended.

In his sentencing remarks the judge stated that these were serious money laundering offences. He described the fraud as a determined and quite sophisticated scheme. He indicated that he would take account of the appellant's basis of plea but that he considered the appellant had played a vital role, being an intelligent man, he must have suspected throughout that this was illegal.

He acknowledged the appellant was not the guiding light in the scheme and had no previous convictions and was a student. He took the view that the offence had crossed the custody threshold by some margin. He stated that some crimes were becoming increasingly common and struck at the heart of the banking system and caused great distress to victims. The identity of innocent people was stolen and substantial sums were taken from their accounts. He felt bound to pass a custodial sentence and deter others. He indicated that he was giving the appellant the credit for his guilty plea, but the appellant had little choice but to plead guilty as he had been caught red-handed trying to withdraw £5,000.

In grounds of appeal it is submitted that the sentence was manifestly excessive. In particular, it is contended that insufficient weight was given for the subordinate role that the appellant had played in the offence and the short period (two days) over which the offences occurred. Furthermore, it is submitted that greater regard should have been paid by the judge to the appellant's youth (18 at the time), his positive good character and his plea of guilty. It is conceded that this case passed the custodial threshold but it is submitted there was proper scope for suspending the sentence.

Undoubtedly this appellant did play a significant role in facilitating a fraud of over £20,000 upon an innocent bank customer. The method used had involved obtaining and using the identification details of that customer and this appellant had allowed himself to be used by assisting in opening a fraudulent account and then withdrawing £10,000 and attempting to withdraw another £5,000. He appeared not to have received my reward but clearly he continued to assist in the fraud in expectation of reward. Misusing others' identity details and bank security information and the furtherance of fraud was becoming increasing prevalent and the judge was entitled to take this into account. There can be no doubt that this case passed the custodial threshold.

We need to consider whether a sentence of 14 months in a young offender institution was manifestly excessive in light of the appellant's general mitigation. The appellant, who entered pleas of guilty, was an impecunious student, aged 18, of previous good character who, whilst playing a vital role in the fraud, did not orchestrate it and received no gain from it. In all the circumstances we consider that the sentence of 14 months in a young offender institution, on a plea of guilty, was manifestly excessive. We consider the region of 12 months to have been an appropriate starting point with an appropriate reduction for the plea of guilty.

We come on to consider whether the sentence should have been suspended, as was strongly recommended in the pre-sentence report. In our view, looking at all the circumstances, namely this appellant's previous good character, his youth and indeed his subordinate role, the sentence should have been suspended and it would have been appropriate to follow the recommendation in the pre-sentence report.

It follows that the appropriate sentence should have been 9 months in a young offender institution, that is some 36 weeks, suspended for 1 year, with a requirement of 12 months supervision. Accordingly this appeal is allowed to that extent.