Chandrarajah, R. v

JUDGE MILFORD: On 12 March 2014 in the Crown Court at Basildon, the appellant pleaded guilty to conspiracy to defraud. On 7 August 2014 at the same court, the appellant was sentenced by His Honour Judge John to 2 years' imprisonment. There were a number of co-defendants. Krishnakumar Bangaru and Muthu Arunachalam were categorised as the principals, and each pleaded guilty. They were sentenced to 3 years and 4 months' imprisonment. Dhanasekar Subbarayalu was categorised as a lieutenant. He pleaded guilty and was sentenced to 2 years' imprisonment. Ronaldas Zilinskas was categorised as a driver, but was convicted after a trial. He was sentenced to 2 years and 6 months' imprisonment. Senthivel Karunakaran was categorised as a driver. He pleaded guilty on the first day of the trial and he was sentenced to 2 years' imprisonment. An application for leave to appeal was refused in his case by the single judge and he did not renew his application. Thayanithy Selvathurai was categorised as a driver. He pleaded guilty and he was sentenced to 16 months' imprisonment.

The appellant appeals against sentence by leave of the single judge, Swift J, who also granted a representation order for solicitor advocate only, Mr Whitcombe, who has advanced the appellant's case before us today.

The facts of the case are these. The appellant together with others was involved in a nationwide conspiracy to defraud bank account holders of funds. Skimming devices and miniature cameras were used to tamper with ATM machines. Customers' bank cards would be retained, and shortly afterwards the cards would be used to make unauthorised withdrawals from the unfortunate customers' bank accounts.

The appellant was one of seven defendants who appeared for sentencing on 7 August 2014. A sentencing note, prepared by the prosecution, was served on the court. It set out amongst other things the rank or status of each of the defendants within the conspiracy. The appellant was adjudged to be a middle-ranking lieutenant, which he did not accept. He was, he said, merely a driver who was involved on one occasion, 10/11 January 2013, when he drove other conspirators from his home address to Hockley in Essex and watched as his co-defendants made repeated purchases at a self-service till within Asda. There was no direct evidence to suggest that he attended any ATM machines himself, affixed to them any equipment used in obtaining bank cards or pin numbers or had any knowledge of the existence of such equipment in the vehicle that he used to transport his co-defendants, although that, it seems to us, could be inferred. In his sentencing remarks, the judge placed the appellant's role as being somewhere between the principals and the drivers.

The judge is to be applauded for his careful and reasoned approach to sentence. He prepared his sentencing remarks in writing and provided them to all parties. He said this was a well-organised conspiracy with a number of aggravating features, including the number of defendants, its duration and the wide geographical area covered. There had been much planning. This involved the obtaining and adapting of skimming devices, the installation of miniature cameras to capture innocent customers' pin numbers, and the downloading of all the results to allow for later withdrawals. There was no figure as to the exact loss involved. There were no sentencing guidelines for the offence, but assistance was drawn from the fraud guidelines, namely the section dealing with the possession or adaption of instruments used for fraud. There, the starting point was 4 years' imprisonment with a range of between 2 and 7 years.

The judge found that the appellant's role was not limited to driving: he was somewhere between the principals and the drivers. His account in the pre-sentence report, namely innocent involvement up until one of the principals admitted to having stolen a bank card and planned to take as many illegal withdrawals as possible, was inconsistent with his guilty plea. The judge rejected this and said he should be sentenced as a lieutenant. He would receive thus a full one-third credit for his guilty plea and the sentence would be 2 years' imprisonment.

The appellant is 32 years of age. He had one previous conviction, namely for driving with excess alcohol in 2011. The grounds of appeal are that the appellant was sentenced incorrectly: he should have been sentenced not as a lieutenant but as a driver.

In the appellant's case there was a factual dispute between the prosecution and the defence as to the status of the appellant. The prosecution asserted that he was a lieutenant rather than a driver, as was contended by the defence. In those circumstances, it fell to the judge to decide. It was not suggested that the dispute merited a Newton hearing, so the judge had to decide it on the papers.

The only evidence against the appellant related to an early stage in the conspiracy when he was with co-defendants on the 10th, and then into the early hours of 11 January 2013, in Asda in Hockley when fraudulent withdrawals were being made on a bank card obtained that day at an ATM in Hockley by the ringleaders of the conspiracy. The appellant's vehicle was also seen being filled with fuel that day which was paid for with the stolen card. The two ringleaders were arrested shortly thereafter and bailed and continued to offend but what we have outlined above was the extent of the evidence against the appellant. He was not arrested and he does not feature in the evidence again.

Given that it was his car, he must have been driving the ringleaders that day. There is no direct evidence from CCTV footage that he was personally involved in tampering with the ATM and obtaining the card. Prosecuting counsel did not advance any argument to support his assertion that he was a lieutenant.

The appellant undoubtedly prejudiced his position by advancing an account to the probation officer which was inconsistent with his plea of guilty. He asserted that once he learned that his passengers had a stolen bank card and were intending to use it to make cash withdrawals, he disassociated himself with what was going on and dropped them off. A lying account such as this against the background of having, by his plea, accepted that he was guilty of conspiracy to defraud inevitably causes any observer to view a defendant with greater suspicion. Indeed, it is clear from the sentencing remarks already referred to, set out at 18B of the transcript, that the judge rejected the account the appellant gave to the probation officer that what he had said to him had been mistranslated in the report and that all he got out of it was a bottle of whiskey. It would seem that, having rejected the appellant's account, the judge considered that he was entitled to find that he was a lieutenant; in other words, he inferred from his lies that his role was more than the evidence actually demonstrated it to be. In our view, that was impermissible. Notwithstanding the appellant's lies, he should have been sentenced on the basis of the evidence, which demonstrated involvement on one day only and at the very outset and as a driver. In those circumstances, we are satisfied that the appellant should have been sentenced as were the other drivers who pleaded guilty at the same stage as he to 16 months' imprisonment.

Mr Whitcombe has added to his written grounds some oral submissions today that relate to the appellant's personal circumstances and the fact that his wife, who is present in court today, is not unnaturally suffering anxiety at the situation that she and her children find themselves to be in. But it is not possible for this court to draw distinctions between the drivers in a far-ranging conspiracy - and a grave one such as this - and we are not minded to go below the figure that was imposed upon others in the case who performed the same role as he.

Accordingly, the sentence of 2 years is quashed and is substituted with a sentence of 16 months. To that extent, this appeal is allowed.