England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 October 2010

1. MR JUSTICE RODERICK EVANS: Maddison J will give the judgment of the court.
2. MR JUSTICE MADDISON: On 11 May 2010 in the Crown Court at Nottingham, the appellant, Roland Kuku, who is 31 years of age, pleaded guilty to offences of possessing false identity documents with intent in count 2 of the indictment, and seeking leave to remain in the United Kingdom by deception in count 4. On 7 June 2010, he was sentenced by HHJ Alexander QC to serve two years' imprisonment on count 2 and one year concurrently on count 4. The sentence triggered the automatic deportation provisions of section 32 of the United Kingdom Borders Act 2007. He appeals against sentence by leave of the Single Judge.
3. He had a co-accused named Mariam Drame, now 27 years of age, who pleaded guilty to attempting to assist unlawful immigration to a Member State in count 1 of the indictment, and to possession of an article for use in fraud in count 3. She, a French national, was sentenced to serve two years' imprisonment concurrently on each count against her.
4. It may be helpful to indicate that the maximum sentences for the offences charged in the four counts in the indictment were 14, 10, five and two years respectively.
5. The relevant facts are these: on 8 March 2010, the appellant and Miss Drame attended St Michael's Church in Northampton to be married. They had previously attended the church office and completed an application for banns of marriage. In support of that the two defendants had provided passports which did not relate to them. Miss Drame had provided a genuine passport in the name of her sister Fatimata. The appellant had provided a false Nigerian passport which contained a false visa from the Home Office granting him indefinite leave to remain in the United Kingdom. In truth the United Kingdom Border Agency had refused him a residence permit on 15 January of this year. Also attached to the application was a water utility bill referring to an address which did exist and was nearby, but at which neither the appellant nor Miss Drame lived.
6. The wedding ceremony was interrupted by the police and the two defendants were arrested. In interview the appellant said that he had been unsuccessful in applying for United Kingdom residence. His original passport was with the immigration authorities. His solicitor had advised him that the best way for him to remain in the United Kingdom was to marry an EU national. The marriage, he said, had been arranged through a friend of his in Manchester. He was to pay Drame £2,000 for her flight and transportation.
7. The appellant came before the court with no previous convictions, though he had been cautioned for shoplifting. Passing sentence the judge observed that there had to be an element of deterrence, especially as there had been a number of attempts in the area for such sham marriages to be conducted. Neither of the defendants before him could claim any association with Northampton, other than their attempt to enter into the sham marriage there.
8. The judge observed that the maximum sentence on count 2 was ten years, as opposed to the 14-year maximum on count 1. The argument that this appellant should receive a lower sentence than his co-accused, because of the different maxima, was rejected by the judge, as was a further argument that the sentence on the appellant should be further constrained by the maximum of two years available on count 4. This, observed the judge, had all been done for the appellant's benefit. He needed a false passport in order to enter into the sham marriage. The object of the exercise was to try to remain illegally in the United Kingdom. Taking into account the appellant's plea of guilty the sentence would be one of two years, and although the judge regarded count 4 as superfluous he imposed the concurrent sentence of one year to which we have referred.
9. During his sentencing remarks the judge said that he had been told that other judges in the Northampton Crown Court had been sentencing to two years on a plea of guilty in similar cases. It appears, however, that he was not referred to the case of R v Ovieriakhi [2009] EWCA Crim 452 in which Christopher Clarke J giving the judgment of the court, presided over by Lord Judge, the Lord Chief Justice, reviewed several earlier authorities related to sentencing in this area, including R v Kolawole [2005] 2 Cr App R (S) 14, and concluded in paragraph 16:

"In cases in which a false passport is to be used for the purpose of securing entry into the United Kingdom, the guidance contained in Kolawole applies."

10. In Kolawole reference was made to a sentencing bracket for such cases following a plea of guilty of between 12 and 18 months. Unsurprisingly reliance is placed on behalf of the appellant on those authorities. This case, be it noted, involved the use of a false passport to enable a person unlawfully in the United Kingdom to remain there rather than to enter the United Kingdom. However, it is submitted, and we agree, that the same guidance applies in both situations. We do not, however, accept that the appellant should have received a lesser sentence than Mariam Drame. Neither do we accept that the judge's powers were constrained by the maximum sentence available for count 4, where as here, the deception charged in count 4 involved the obtaining and use of the false passport containing a false visa referred to in count 2.
11. The appellant further relies on the fact that he pleaded guilty and that he had formerly been lawfully resident in the United Kingdom. Although he is entitled to credit for his plea he was of course caught in highly incriminating circumstances. We do, however, accept that given the bracket identified in the authorities, to which we have referred, given that only one passport was involved in this case, and given the plea of guilty and the other personal mitigation available to the appellant, the sentence of two years was clearly excessive.
12. Having heard from Mr Ash we take the view that this is a case which falls in the middle of the bracket identified by the authorities, and accordingly we quash the sentence passed by the judge and for it substitute one of 15 months' imprisonment. To that extent the appeal is allowed.