Attorney General's Reference No 141 of 2004

Neutral Citation Number: [2005] EWCA Crim 653 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 200406788/A0 Royal Courts of Justice Strand London, WC2 Wednesday, 2nd March 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE DAVID CLARKE MR JUSTICE CHRISTOPHER CLARKE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 141 OF 2004 (KENNETH KINCE THOMAS) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR P ROWLANDS appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. 2. 3. 4. 5. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave. The offender is 46 years of age, having been born in August of 1958. On 5th July 2004, at Wood Green Crown Court, he pleaded guilty to conspiracy to defraud. On that occasion his co-accused, a man called Charles, pleaded not guilty and sentence in relation to the offender was, in consequence, adjourned, both for reports and pending the trial of the co-accused. Charles absconded and he has never been tried. The offender was sentenced by Her Honour Judge Stern QC at Wood Green, on 1st November 2004, to a community punishment order of 220 hours. In outline, what happened was that the offender facilitated the creation and use of cloned credit and debit cards. The enterprise was on a large scale, and it persisted over a 2 year period, between September 2001 and September 2003. When the police raided addresses connected with the offender, they found a computer assisted factory, indent machines and a large number of credit cards. This conspiracy related to the fraudulent usage of compromised credit card numbers which resulted in a loss of approximately £150,000. The offender derived significant personal benefit, (said to have been of the order £2,500) but he was sentenced by the judge on the basis that he was neither the instigator nor the principal organiser of the conspiracy. In a little more detail, police officers searched the offender's home at 159 Bream Close N17 on 3rd September 2003. They discovered six mobile telephones, car hire documents with an address at 83 Grafton House E3, £1,000 in cash, receipts for high value expenditure, such as a credit card receipt in the sum of just under £4,000, computer disks, a swipe machine and a tenancy agreement and rent book for two other properties. There were credit and reward cards not in the offender's name, a blank Mastercard and six pieces of paper with printed and handwritten credit or debit card numbers upon them. In consequence, the police went to one of the other properties at 83 Grafton House. Charles was there. There was a credit card cloning factory with appropriate machinery in process there. Charles' fingerprints were found on a variety of equipment at that address. 6. When he was arrested, the offender made no comment. Extensive investigations were carried out in relation to the card numbers and the offender was re-interviewed, subsequently. Again he made no comment. He entered a plea of guilty at the plea and directions hearing in July 2004, after all the evidence had been served. The basis of the plea relied on was that he was the tenant of 83 Grafton House but permitted others to live there and Charles to use it. From 2002, having discovered credit card cloning paraphernalia in the house, and turned a blind eye to it, he himself decided to use the cloned cards available to him and passed between 10 and 15 of those cloned cards to someone else. Thereafter he held materials and equipment for Charles and passed cards on to others for reward. 7. 8. 9. After he had pleaded guilty he was remanded on bail. The offender's personal circumstances, so far as his finances are concerned, were healthy, notwithstanding that he was drawing jobs seeker's allowance. He had spent £16,000 on clothes in the 18 months immediately prior to his arrest and £9,000 on car hire during the same period. He has previous convictions but most are very old and relate to dishonesty and driving matters. The only conviction in the last 20 years or so is when, in October 1983, he was fined £100 by magistrates for handling. 10. On behalf of the Attorney, Miss Cheema draws attention to what she, rightly, submits are three aggravating features: first, this was a large scale conspiracy with sophisticated equipment being used; it is of a character which undermines the integrity of the banking and credit system. Secondly, substantial profits were made in the enterprise and there was significant benefit (in financial terms) to this offender. Thirdly, the conspiracy continued for over 2 years and would no doubt have continued longer had it not been for police intervention. 11. Miss Cheema draws attention to the mitigation to be found in the early plea of guilty, the fact that the offender was not the instigator of the offence and the absence of relevant, recent, previous convictions. 12. She draws attention to two authorities, Attorney-General's No Reference No 73 of 2003 (R v Ranganathan) [2004] 2 Cr App R(S) 337 and R v Taj, Gardner and Samuel [2003] EWCA Crim 2633. The essential submission is that the non-custodial sentence which was passed was unduly lenient and failed to reflect the seriousness of the offence and the aggravating features present. She submits that a deterrent sentence ought to have been passed. 13. Mr Rowlands, on behalf of the offender, submits that the authorities on which Miss Cheema relies do not support a contention that a sentence of 3 to 4 years would have been appropriate in relation to this offender. Mr Rowlands draws attention to the offender's subsidiary, non-organisational, role, to the relatively small personal gain by him, to the scale of the fraud in this case being less than that in the two authorities relied on, to the plea of guilty at the earliest opportunity and to the feature of delay in sentencing for a period of 4 months, by reason of the matters to which we have referred. Mr Rowlands points out, rightly, that the offender has carried out 87 hours of the community punishment order which was imposed. 14. Mr Rowlands submits that the appropriate sentence, in the court below would have been one of 18 months to 2 years and, on that basis, he invites the Court, if that proposition is accepted, to exercise its discretion and not interfere with the sentence passed below. He also relies on the principle of double jeopardy. He refers, also, to the fact that the offender presently has custody of his 11 year old son, though Mr Rowlands accepts that, if the offender is to be incarcerated, the mother will be able to take custody of that child. Mr Rowlands also rightly stresses the fact that, during the period of delay SMITH BERNAL WORDWAVE between plea of guilty and sentencing, the offender went on a job seeker's course and he apparently has the prospect of a paid job, if he is not today incarcerated. 15. We take all of these considerations into account. In our judgment, the relevant culpability and criminality of this offender called in the court below for a sentence of the order of two-and-a-half to 3 years. It follows that the sentence passed by the learned judge was unduly lenient. We have to have regard, however, to double jeopardy, that is to say that the offender is being sentenced a second time. We have regard to the fact that he has undertaken 87 hours of the community punishment order. We also take into account that a non-custodial sentence was passed initially and the efforts in relation to work which the offender has made. In all those circumstances, we quash the order made in the court below and the sentence which we pass in substitution for that sentence is one of 15 months' imprisonment. That sentence will run from the day on which the offender surrenders to custody. 16. THE VICE PRESIDENT: Mr Rowlands, is there any difficulty in him surrender to custody today? 17. MR ROWLANDS: There is not frankly. He has asked me if it is appropriate for him to say so that he might surrender tomorrow. That is an unusual request. 18. THE VICE PRESIDENT: Bearing in mind the child, we shall permit him to surrender at noon tomorrow. 19. MR ROWLANDS: Thank you very much. SMITH BERNAL WORDWAVE