Neutral Citation Number: [2008] EWCA Crim 1972

No. 2008/03760/A6
    2008/03450/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday 1 August 2008

B e f o r e:

LORD  JUSTICE  TOULSON

MR  JUSTICE  DAVIS

and

HIS  HONOUR  JUDGE  BEVAN  QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)

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R E G I N A

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JORGE  ALBEIRO  BURITICIA-CASTRILLON

RITA  DUPE  OMOTADE
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Mr H Charlton appeared on behalf of
the Applicant Jorge Albeiro Buriticia-Castrillon

Miss S Palastrand appeared on behalf of
the Applicant Rita Dupe Omotade
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J U D G M E N T
Friday  1  August  2008

LORD JUSTICE TOULSON:  I will ask His Honour Judge Bevan to give the judgment of the court.

HIS HONOUR JUDGE BEVAN:
1.  These two applications relate to issues concerning passport type documents.

Jorge Albeiro Buriticia-Castrillon
2.  The applicant Jorge Albeiro Buriticia-Castrillon is aged 36.  On 25 March 2008, at the Croydon Magistrates' Court, he pleaded guilty to one offence of seeking leave to enter or remain in the United Kingdom by deception and was committed to the Crown Court for sentence.  On 3 July 2008, at the Crown Court at Croydon, he was sentenced by His Honour Judge MacRae to fourteen months' imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 100 days spent in custody on remand should count towards sentence.  He was also recommended for deportation.  His application for leave to appeal against the sentence and the recommendation for deportation has been referred to the full court by the Registrar.

3.  On 21 May 2007 the applicant, a Columbian national, and a woman who claimed to be a Spanish national applied to the Home Office to remain in the United Kingdom as unmarried partners.  The applicant supplied a Columbian passport and the woman a Spanish passport in the name of Miss Puerta Bautista.  The woman was exercising her Treaty rights as a Spanish national.  The applicant was applying on the basis that his partner was an EU national.

4.  The Home Office noticed that the Spanish passport was a forgery.  They believed the woman to be Moria Orozco, a Columbian national.  A number of utility bills supplied in support of the application were also forged.  There was no trace on the Home Office systems of the applicant or the woman entering the UK lawfully, or being lawfully in the UK.

5.  On 22 March 2008 they were both arrested.  The property where they lived was searched.  Officers found two Columbian passports.  One was in the name of the applicant and contained his photograph.  The other contained the woman's photograph and was in the name of Maria Orozco.  When interviewed, the applicant made no comment.

6.  In his sentencing remarks the judge said that the applicant was in this country unlawfully from the outset.  Passport offences were very serious.  Giving all possible credit for his plea, the sentence was fourteen months' imprisonment.  On the material before the court his continued presence in this country would not be conducive to the public good.  He was recommended for deportation.

7.  The applicant, therefore, arrived in the EU lawfully but came to the UK unlawfully (or so it appears).  His application was supported by his partner's forged Spanish passport and forged utility bills which passed her off as an EU national in order to deceive the Home Office by means of her forged passport.  It is argued on his behalf that his involvement was limited to complicity in, and benefit from, her deception, rather than to active participation himself.  However, any passport offence is a serious matter.  The guideline case of R v Kolawole [2004] EWCA Crim 3047, [2005] 2 Cr App R(S) 14 refers to a plea of guilty to such an offence even by someone of good character meriting a sentence of 12 to 18 months for a passport offence, but that is an offence of possessing a false instrument with intent for which the maximum is ten years.

8.  The maximum for this offence under the Immigration Act 1971 is two years.  Therefore, with credit for his plea of guilty in the magistrates' court, this applicant was sentenced to something close to the maximum sentence.  One difficulty in this area of criminal behaviour is created by the number of Acts of Parliament which deal with this type of offence either under the Forgery and Counterfeiting Act 1981, the Immigration Act 1971, the Fraud Act 2006 or the Identity Cards Act 2006.  There are a number of offences which range in penalty from two years, five years or ten years' maximum sentence.

9.  Here the offence was contrary to section 24A of the Immigration Act 1971 which merited a maximum sentence of two years' imprisonment.  We are not impressed by the argument that a rogue solicitor, who has now left the country, may be behind this offence and other offences.  No doubt if he were arrested and was found to be behind a number of such offences, more serious charges would be brought against him or her.  The applicant was using his partner's application to assist in deceiving the authorities.  In our judgment the sentencing judge was fully entitled to treat it as a serious example of its kind.  Although the sentence is a high one, bearing in mind the maximum for this offence, taking into account credit for his guilty plea, we see no reason to interfere with the sentence.  The application for leave to appeal against it is refused.

10.  So far as the recommendation for deportation is concerned, we refer to the recent case of R v Mabengo and Others (LCJ, Goldring and Plender JJ) [2008] All ER 240, where it was stated that on the authorities, in considering whether to make a recommendation for deportation the judge was obliged to consider each defendant separately and to weigh the seriousness of the offence against other factors which were drawn to his attention.  It was not enough to make a recommendation having regard solely to the seriousness of the offence.  In that case it was said that the judge had not sufficiently balanced the seriousness of the offence in relation to each individual with the background of each defendant individually.  Accordingly, the orders for recommendation for deportation had to be quashed.

11.  There is no material before us other than the offence itself to explain the recommendation for deportation.  We accordingly are of the view that it was not proper to make that recommendation in this case.  We therefore grant the applicant leave to appeal and we quash the recommendation for deportation.  That will become a matter for the Home Office.  To that extent alone the appeal is allowed.

Rita Dupe Omotade
12.  On 13 March 2008, in the Crown Court at Woolwich, before His Honour Judge Moore, the applicant, Rita Dupe Omotade, pleaded guilty to a single count of possession of a false identity document with intent contrary to section 25(1) of the Identity Cards Act 2006.  The 91 days she had spent in custody on remand were ordered to count towards sentence.  Her application for leave to appeal against sentence has been referred to the full court by the Registrar.

13.  At 2pm on 6 March 2008 the applicant went to a money shop in Woolwich.  She asked the staff to cash a £500 cheque.  She presented a utility bill and a false Nigerian passport for purposes of identification.  The staff became suspicious and called the police.  When they arrived they inspected the passport and could see that the plastic looked glued down.  The applicant said that she had been given the passport.  She confirmed that she had tried to cash the cheque.  She made no comment in interview.

14.  In passing sentence on her the judge said:

		"You had in your possession and attempted to use a false Nigerian passport."

He commented on the fact that there was no record of the applicant attempting to or entering this country unlawfully, but he operated on the basis that she was who she said she was and was 26 years of age.  He continued:

		"In relation to good character .... that helps us very little if we do not know how long you have been in the country.

		....  The factors that I take into account are your plea of guilty and the matters that have been urged on your behalf in the pre-sentence report.

		....  Passports are used in positions of trust and people have to trust them.  It strikes at the very fabric of our society.  .... the sentence that I will impose will be a period of 15 months' imprisonment."

The court was assisted by a pre-sentence report, which we have read.

15.  In mitigation it is said, as was said below, that the applicant was hitherto of good character; she pleaded guilty at an early stage; she was in possession of one passport which she used for a purpose at the lower end of seriousness on a single occasion.  There were character references on her behalf.

16.  The judge passed a sentence in the middle of the range suggested in Kolawole.  The maximum sentence for this offence is five years. The maximum sentence was ten years in Kolawole.  We are greatly assisted by the careful and objective analysis of the relevant authorities by Miss Palastrand on behalf of the applicant.  She has referred to the following cases: R v Kolawole [2005] 2 Cr App R(S) 14, R v Mutede [2005] EWCA Crim 3208, R v Adebayo [2007] EWCA Crim 878, and R v Rostamkhany [2007] EWCA Crim 342 and Attorney General's Reference Nos 1 and 6 of 2008 [2008] EWCA Crim 677 with which we need not concern ourselves.

17.  The principles to be extracted from those cases seem to be, first, that the use of a false passport to gain entry to this country, contrary to section 5(1) of the Forgery and Counterfeiting Act 1981, on a guilty plea merits 12 to 18 months, as is set out in the leading authority of Kolawole.  Secondly, Mutede distinguishes a false passport used to gain entry, and false immigration letters used to obtain work after legal entry, which merits a lower sentence.  Thirdly, Adebayo (a midway situation of using a false passport to obtain work) was held to be indistinguishable from Kolawole as to the sentencing bracket because of the significance of the use of a false passport.

18.  This court has repeatedly emphasised that the use of false passports must be treated seriously, as in Kolawole, even where one passport is used, on a plea of guilty, by a person of good character in relation to gaining entry.  That is because the use of false passports to obtain entry to this country disrupts the fabric of immigration control or has the potential to do so.  There is, as the authorities show, a lower level of gravity involving the use of a false passport in this country to obtain a job or to obtain benefit  -- in other words, to obtain something to which the user of the passport is not entitled by means of a forged passport.  

19.  This case on its own special and particular facts seems to us to be one further step removed.  The applicant was entitled to cash her cheque.  She simply used the passport as a false means of identification in pursuit of something to which she was entitled anyway had she used a proper, honest document.  That puts this case in our judgment at or slightly below the lowest end of the Kolawole range.  In the circumstances the special facts of this case justify in our judgment a sentence of ten months' imprisonment.

20.  We will therefore grant the application for leave to appeal against sentence.  We quash the sentence of 15 months' imprisonment imposed below and we substitute for it a sentence of ten months' imprisonment.  To that extent the appeal is allowed.