No: 2018 02587 A4 
Neutral Citation Number: [2018] EWCA Crim 2468 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 12 October 2018
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE GOSS 

THE RECORDER OF WINCHESTER
HIS HONOUR JUDGE CUTLER CBE 

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R E G I N A 
v 
ROBERT GRAHAM FLYNN

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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MR SEAN SMITH appeared on behalf of the Applicant

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J U D G M E N T
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LORD JUSTICE SIMON:  
1.	On 2nd May 2018,  in the Crown Court at Liverpool the applicant pleaded guilty to twelve charges of fraud, contrary to section 1 of the Fraud Act 1988 (counts 1‑12), a single charge of possession of false identity documents with the intention of using them to establish registerable facts about himself, contrary to section 25(1)(c) of the Identity Cards Act 2006 (count 13), a charge of possession of an identity document with the improper intent of using the document to establish personal information that was false, contrary to section 4(1) and (2) of the Identity Documents Act 2010 (count 14), and a further charge of perverting the course of justice (count 15).  

2.	On 23rd May he was sentenced by Mr Recorder Rhind for the fraud and identity offences to a total term of 36 months' imprisonment, consisting of 30 months on count 12 and concurrent terms on counts 3 to 14; and consecutive sentences of six months on counts 1 and 2, to be served concurrently.  For the offence of perverting the course of justice (count 15) he was sentenced to a consecutive term of nine months.  The total term was therefore one of three years and nine months (or 45 months).  He renews his application for leave to appeal that sentence following refusal by the single judge.

3.	At the date of sentence, the applicant was serving an eight‑year term of imprisonment, imposed on 25th November 2016 following a guilty plea to a charge of conspiring to supply Class A drugs, heroin and cocaine.  During the operation that led to that conviction, the applicant's lifestyle was investigated and evidence revealed that he was fraudulently using the identity of his brother Mark in a number of ways: setting up bank accounts, obtaining finance, insurance and a driving licence.  
4.	Mark Flynn had moved to the United States in 1990 and had lived there since.  In the course of the investigation, he was traced and confirmed that he did not know that the applicant had used his identity.  This had been done without his consent.  He had not had any contact with the applicant since 1998.

5.	In January 2009, the applicant, who did not himself hold a driving licence, had applied to the DVLA for a photocard driving licence using his brother's details but attaching a photograph of himself.  On 29th July 2015, he reapplied to the DVLA to renew that driving licence, again using his brother's details (counts 1 and 2).

6.	Those fraudulently obtained driving licences were used as his identification in a number of other fraudulent activities.  Counts 3 to 6 related to their use as identification in opening bank accounts, one with HSBC and three with Santander.  The prosecution case was that the monies obtained from drug dealing passed through those bank accounts in a total amount of £92,000.

7.	Counts 7 and 8 related to the obtaining of finance to purchase vehicles, also using the false driving licence as identification: for the application of just over £17,000 to purchase a Chrysler in September 2009 and for just over £21,500 to purchase a Renault Megane in September 2015.  There was no actual loss in relation to either of those counts.

8.	Counts 9 and 10 related to taking out car insurance policies using his brother's identity.  Count 9 related to an insurance policy on a BMW car in June 2014, and count 10 to a policy on the Renault Megane the subject of count 8 in September 2015.
9.	Count 11 related to a Vodafone monthly contract using his brother's details in September 2013.  The mobile number was used and provided to banks, finance houses and insurers to obtain their products.  

10.	Count 12 related to the use of the driving licence to obtain a bridging loan on a property in Formby in April 2014.  The bridging loan was for £160,000 and the loan obligations were not subsequently discharged, leaving a shortfall to the bridging company of £55,600.  That was the total value of actual loss caused by the offending on the indictment.

11.	Counts 13 and 14 related to possession of false driving licences to establish registerable facts about himself.

12.	Count 15 related to an offence of speeding.  On 20th July 2014 he was caught speeding in the BMW.  A notice of intended prosecution was sent, which he completed, indicating that Mark Flynn was the driver of the car.  An improvement course was offered but not taken.  The case was referred to the magistrates' court and Mark Flynn was convicted in his absence.  That resulted in the false licence that was the subject of count 1 being suspended.  The applicant then surrendered the licence for endorsement and applied for the new licence that was the subject of count 2 in July 2015.

13.	The applicant was 58 at the date of sentence and had eight previous convictions for 26 offences between June 1981 and November 2016.  His relevant convictions included a number of offences of dishonesty and a previous conviction for perverting the course of justice.  He had also been sentenced to a term of five years for supplying Class A drugs in 2000 and a further term of five years for a similar offence in 2004.

14.	In passing sentence, the Recorder set out the facts and described the offences as sophisticated, being carried out over a period of many years and involving high value.  The court had to reflect the seriousness of the offences and also the fact that he was serving a sentence of eight years' imprisonment.  The offences for which he was now being sentenced had occurred either in whole or in the main before that sentence was imposed and the court had to take account of totality.  Other than his guilty plea, there was no real mitigation.  He complained about the timing of the charges being brought, but he had got himself involved in sophisticated offending which had taken time to unravel and investigate.  So far as the fraud elements of the offence were concerned, the accounts at HSBC and Santander had been established and used to funnel the drugs proceeds of £92,000 and procure the loans, together with the further £160,000 bridging loan.  Although the loans had been serviced until he was remanded into custody, there had been a loss, and he had created a risk of loss to all those financial institutions which they would not knowingly have accepted.  The Recorder said it was difficult to categorise the offences within the fraud guidelines, but it was multiple offending, and not a single offence against multiple victims.  Had they stood alone after a trial, a sentence in the region of five years would have been appropriate.  The total sentence, reflecting his pleas and totality, would be a term of 45 months' imprisonment, to be served consecutively to the sentence he was currently serving.

15.	In the written grounds of appeal, it was accepted that the fraud offences fell within Category A3 of the fraud guidelines, in view of the nature and extent of the fraud: category A because they were committed over a sustained period of time and category 3 in view of the amounts, between £20,000 to £100,000.  Category A3 provides for a starting point of three years and a range of eighteen months to four years.  It was also accepted that consecutive sentences were appropriate for the charge of the perverting the course of justice.

16.	On the application today Mr Smith submits that the sentences should have been ordered to be served concurrently to the sentence of eight years' imprisonment for the drug offence or at the very least a greater reduction should have been made to the overall sentence, taking into account both sets of offences.  The sentence overall of eleven years and nine months was manifestly excessive.  He submits that there was insufficient credit for the pleas; the applicant was in poor health and serving an eight‑year sentence.  He draws attention to the fact that the impact on the victim, Mark Flynn, was slight in view of his being in the US and with no contact since 1998.  He points out that the applicant’s last conviction for fraud was for benefit fraud and was of some considerable antiquity.  The further primary focus of his submission was that these offences occurred at the same time as the drug offences and if they had been dealt with at the same time there would not have been a significant increase in the sentence over and above the term of eight years imposed.

17.	In our view there is merit to these submissions, at least to this extent.  The Recorder necessarily had to consider the overall effect of the sentence as a matter of totality.  We consider that there was nothing wrong with his starting point of five years taken in isolation, and there was nothing wrong with ordering the overall sentence to be served consecutively tor the sentence for the drug offending.  These were serious offences and distinct from the drugs offences.  However, we are persuaded that the Recorder did not give sufficient weight to the overall effect of the sentence he imposed.  In our view, in order to give proper effect to the principle of totality, he should have reduced the overall sentence for these offences to a term of two‑and‑a‑half years (or 30 months).  

18.	Accordingly, we grant leave to appeal.  We will give effect to our judgment by quashing the sentence of 30 months on count 12 and substituting a sentence of eighteen months, and by quashing the sentence of nine months consecutive on count 15 and substituting a sentence of six months consecutive.  The other sentences will remain unaffected and the total sentence to be served consecutively to the eight‑year term will be a term of 30 months.  We will also quash the victim surcharge, which should not have been imposed in view of the date of the offending.  To that extent the appeal is allowed.