Neutral Citation Number:
[2017] EWCA Crim 1277
Case No:
201701986/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 15 August 2017
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
MR JUSTICE HOLROYDE
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R E G I N A
v
DAPHNE ABUAH
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NON-COUNSEL APPLICATION
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J U D G M E N T (Approved)
1.
MR JUSTICE HOLROYDE: On 29th May 2017 in the Crown Court at Croydon, this applicant was sentenced by Her Honour Judge Smaller to a total of 29 months' imprisonment for offences involving the fraudulent obtaining of benefits and the possession of false identity documents. Her application for leave to appeal against her sentence, based both on the grounds drafted by counsel and on various supplementary grounds of her own composition was refused by the single judge. The application is now renewed to the Full Court. Yet further grounds have been put forward since the matter was considered by the single judge.
2.
Each member of the court has read and carefully considered all the many documents put before the court but in accordance with the usual practice on a renewed application for leave to appeal, we will express our conclusions and our reasons briefly.
3.
The applicant came to the United Kingdom in 2005. She entered the country lawfully. For a time she had the benefit of discretionary leave to remain and during that period she was entitled to, and did, claim State benefits. However her leave to remain expired on 23rd September 2013. From that date she had no lawful right to be in this country and no lawful right to claim benefits. That was an obviously highly material change in her circumstances. She failed to notify it to the appropriate authority and continued to claim and receive benefits. In the result she received over £41,500 of public funds, to which she was not entitled, before her claim was stopped in November 2015. It was stopped at that time because when asked by Her Majesty's Revenue & Customs to provide evidence of her status in the United Kingdom, the applicant had provided a counterfeit document which purported to show that in November 2013 she had been granted indefinite leave to remain.
4.
When she was arrested, and as a result of the investigation into that matter, it was found that she was in possession of two further false identification documents, a Netherlands identification card and a driving licence in the assumed named "Susan Johnson". It emerged that the applicant had used those false documents to obtain modestly paid employment as a care assistant.
5.
It should be noted that about a year before her arrest for these offences, in December 2014, the applicant had been sentenced to a community order for offences of using a false instrument and fraudulently failing to disclose information. Those offences related in essence to her claiming benefits whilst working.
6.
In the present proceedings the applicant pleaded guilty, although by no means at the first opportunity, to five offences. On count 1 she admitted possession of an identity document with improper intention, contrary to
section 4
of the
Identity Documents Act 2010
. That charge related to the fraudulent documents which she provided to Her Majesty's Revenue & Customs. Counts 2 and 3, further offences of possession of an identity document with improper intention, related to the two further false documents which she had used to obtain employment. Count 4, fraud, contrary to
section 1
of the
Fraud Act 2006
, related to her fraud in obtaining employment, at a time when she had no right to be in this country still less to work. Count 5, a further charge of fraud, related to her fraudulent benefit claim.
7.
In relation to count 5, which the learned judge rightly treated as the most serious of the offences, the applicant's guilty plea was entered on a specific factual basis. That basis was not accepted and after a
Newton
hearing the learned judge found it to be quite false.
8.
In those circumstances the learned judge gave credit for the guilty pleas on counts 1 to 4. She did not specify precisely how much credit but we infer that it must have been of the order of 25%. The judge gave no credit at all for the very late plea on count 5, as that had been entered on the basis which had been found to be false.
9.
The learned judge imposed concurrent sentences of 9 months' imprisonment on each of counts 1 to 4 and she imposed a consecutive term of 20 months' imprisonment for count 5. Thus the total sentence was one of 29 months' imprisonment, which the judge indicated took account of the principle of totality and had indeed involved some reduction from the sentences which would have been passed for individual offences had they stood alone.
10.
The grounds of appeal initially prepared by counsel were, in brief, that all of the sentences should have been concurrent, because the judge should have treated the offences as a single course of conduct. Alternatively counsel submitted that, if there was to be any consecutive sentencing, then the term of 9 months for counts 1 to 4 was manifestly excessive in length.
11.
In her series of communications to the court the applicant has added a variety of further grounds which did not have the support of counsel. She criticised the learned judge for failing to give any credit for the guilty plea on count 5 and for failing to specify what credit had been given for the guilty pleas on counts 1 to 4. She contended that the judge incorrectly applied the relevant Sentencing Guidelines. She contended that the amount of benefit which had been fraudulently obtained had been overstated. She complained that the judge in considering the sentence on count 4 had failed to take into account that she received only a low income from the employment which she had fraudulently obtained. In addition, she raised various matters relating to her state of health and to her unhappy personal history of an abusive marriage. She expressed remorse. She regarded her time in custody as "a wake-up call" and expressed her good intentions for the future. Lastly, she put forward a plea for leniency.
12.
Many of these submissions have been considered by the single judge, who rejected them for reasons which he very clearly explained in writing and which we need not repeat because the applicant already has them. But we have considered those points afresh, and we have considered the matters raised subsequently to the single judge's decision.
13.
We can express our conclusion very briefly. We see no merit in any of these suggested grounds of appeal. There were here two distinct strands of offending. The use of false identification documents to obtain employment which the applicant could not lawfully obtain, and the use of a separate false document to make and continue a prolonged fraudulent claim for State benefit. In those circumstances, consecutive sentences were correct in principle.
14.
The applicant's submission wrongly focused on the earnings obtained from the employment which she gained by the fraud in count 4. She overlooks the important fact that that fraud involved the use of false identification documents by a person who had no leave to remain in this country.
15.
Counts 1 and 5 involved the use of a different false document at a late stage, and a protracted fraudulent claim for benefit. That continued over a period of 2 years. It involved a loss to the public purse in excess of £41,500. That offence in particular was aggravated by the applicant's previous conviction for similar offending, which clearly did not deter her from continuing this fraudulent claim after she had received a lenient sentence for the earlier offences.
16.
In all those circumstances, there is, in our judgment, no possible basis on which it could be said that the total sentence of 29 months' imprisonment was manifestly excessive. There is no arguable ground of appeal. The renewed application is accordingly refused.