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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Awosika, R. v [2009] EWCA Crim 625 (18 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/625.html Cite as: [2009] EWCA Crim 625

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 March 2009

1. LORD JUSTICE GOLDRING: My Lord, Nicol J, will give the judgment of the court.
2. MR JUSTICE NICOL: On 21 January 2009, the appellant was sentenced to ten months' imprisonment by HHJ McDonald QC at Maidstone Crown Court. This followed a plea of guilty to a charge of fraud contrary to section 1 of the Fraud Act 2006. She was granted permission to appeal by the single judge.
3. The appellant and a colleague went to a jeweller shop in Tunbridge Wells. They asked to look at Rolex watches. Having selected one and negotiated a price of £11,480, the appellant presented an American Express card for payment. The card was in the name of another person. The shop made a phone call for authorisation for the transaction. The card company asked to speak to the appellant. She pretended that the line had been disconnected, but the shop had become suspicious and the police were called. In the meantime the appellant had produced a Californian driving licence in the same name as the American Express card. Again, authorisation was refused. The police arrested the appellant and her colleague and charged both with fraud. The colleague has since disappeared. Although the appellant made no comment in interview, she did plead guilty at the first reasonable opportunity.
4. The appellant is 35. She is a single parent of three children aged 10, 7 and 5. She had five previous convictions for a total of nine offences. They all involve some form of acquisitive offence by deception. The last conviction before the present one had led to her being imprisoned for two months in March 2005 for an attempt to obtain a pecuniary advantage by deception and going equipped to cheat.
5. The judge observed that the present offence was aggravated because, in addition to her previous record, two people had worked together, and there was an obvious element of planning, in addition to her previous record. On the other hand, the judge observed that there had been no loss to the shop. The appellant had taken steps to reform and now had a job. It had not been argued that her children were good mitigation because the offence was the appellant's own doing, and it was not exceptional in its effect.
6. The pre-sentence report had suggested a suspended sentence, but the judge rejected this since it would effectively have the character of letting the appellant off. The court had a duty to protect honest shopkeepers and to maintain public confidence in the criminal justice system, which must demonstrate that it is worthwhile being honest. He took 18 months as his starting point if the appellant had contested the charge. He reduced this to 15 months in view of her efforts at reform. He made a further reduction of one third because of her plea. Thus he reached his sentence of ten months.
7. The appellant argues that the sentence was manifestly excessive in view of the very much greater length of this sentence by comparison with the previous sentence of two months that had been imposed on her. The judge, it is argued, should have given greater weight to the pre-sentence report and to the appellant's efforts to rehabilitate herself. In granting leave to appeal, the single judge referred to the Sentencing Guidelines Council's draft guideline for sentences of this type. For a single confidence fraud not targeting a vulnerable victim and involving no or limited planning, and where the goods in question have a value of about £10,000, the SGC proposes a starting point of a medium community order with a range from a fine to six weeks custody. For a lower scale advance fee fraud or other confidence fraud characterised by a degree of planning and/or multiple transactions, the proposed starting point is 18 months' imprisonment, with a range of 26 weeks to three years. In between these bands is a category where the victim of the fraud was particularly vulnerable, which is obviously not relevant here.
8. It is not particularly easy to identify the band which the SGC would regard as appropriate to the present case. This was a single confidence fraud, but it was characterised by a degree of planning. There were two people involved. Earlier decisions of this court, as well as the SGC's proposal, identifies identity theft, which was also in issue in the present case, as a further aggravating feature. The SGC guideline, like its others, assumes a first-time offender who has contested guilt.
9. We emphasise that this is only a draft guideline. The Council is consulting on its proposal. It is only when the guideline has been definitively adopted that sentencers will be under a statutory duty to have regard to it. Since even this proposal was not published until after the sentencing hearing before Judge McDonald, he cannot, of course, be criticised for not taking even this matter into account.
10. We have reached our view as to what would be the appropriate sentence independently of the proposal from the Sentencing Guidelines Council. Our view is that Judge McDonald took too high a starting point in calculating the sentence. We agree with him that an immediate custodial sentence was necessary. The appellant did have a long record of deception-type offences. The four-year interval between this offence and her previous conviction showed, if anything, the precariousness of any change in her way of life. However, while there was a degree of pre-planning and the use of another person's identity, this was an attempt to commit a fairly elementary fraud. We think that a sentence of 12 months would have marked the court's duty to honest traders and the appellant's record. As the judge recognised, some further reduction was appropriate to reflect the more recent efforts at reform. This would have brought the sentence down to nine months. Allowing further for her plea of guilty, we think that a sentence of six months' imprisonment would have been right.
11. Accordingly, we will allow the appeal, quash the sentence of ten months' imprisonment, and substitute a term of six months' imprisonment.