No:
200402821/D2
Neutral Citation Number:
[2004] EWCA Crim 2724
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 18th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
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R E G I N A
-v-
SOLOMON IGBEBION
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Computer Aided Transcript of the Stenograph Notes of
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MR S FIDLER appeared on behalf of the
APPLICANT
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J U D G M E N T
1.
MR JUSTICE RICHARDS: The Court has before it an appeal and applications by Solomon Igbebion relating to sentences imposed on him on 5th April 2004 by His Honour Judge Walker, at Blackfriars Crown Court. On that occasion he was sentenced, first, to 9 months' imprisonment for an offence of attempting to obtain services by deception, following a conviction for that offence before the same judge and a jury on 24th September 1999. A consecutive sentence of 9 months' imprisonment was imposed for breach of bail, the circumstances of which we will describe in a moment. A further consecutive sentence of 18 months' imprisonment was imposed for an offence of having a false instrument, a matter committed to the Crown Court for sentence, following a plea of guilty in the Magistrates' Court. Finally, there was a concurrent sentence of 7 days' imprisonment for a driving offence, a matter also committed to the Crown Court following a plea in the Magistrates' Court. Thus the total sentence was one of 3 years' imprisonment.
2.
The appellant appeals, as of right, under
section 13 of the Administration of Justice Act 1960
against the conviction and sentence for the Bail Act offence. He applies for an extension of time in which to seek leave to appeal against sentence for the offences of attempting to obtain services by deception and having a false instrument. We grant the necessary short extension of time and leave to appeal against sentence in respect of those other matters and with the consent of Mr Fidler, who appears on the appellant's behalf, we treat this hearing as the hearing of the substantive appeal.
3.
The history of the various matters is as follows. On 6th May 1999 the appellant went to the Halifax Bank in Edgware Road, London. He stated that his name was Jason Richards and that he wished to apply for a personal loan in the sum of £7,000. He produced an acknowledgment slip from another Halifax account and a driving licence by way of identification. A different address appeared on the driving licence. When asked for additional identification he produced a gas bill. The suspicions of the bank supervisor were raised by the appellant's nervous disposition and by the fact that the documents appeared to be fake. The police were called.
4.
When questioned, the appellant claimed that he was applying for the loan for a friend. He was charged with attempting to obtain services by deception. The matter went to trial, which resulted in his conviction on 24th September 1999. Sentence was adjourned to 14th October 1999, for the preparation of reports. The appellant was granted bail with a condition of residence. In the event, he failed to surrender to bail and remained at large until 7th February 2003.
5.
In fact, on 14th October 1999 - the date of the adjourned sentencing hearing - a medical report was produced by the defence which resulted in the judge adjourning further to 12th November 1999 and ordering the production of a full medical report in order to determine whether the appellant was in breach. However, on 12th November the appellant failed to attend yet again and a warrant, not backed for bail, was issued. There the matter rested until 7th February 2003, when the appellant was stopped by police when driving a motorcar. The police officers conducted a search as the appellant was acting suspiciously. During the process he tried to run away. As he was apprehended a passport fell from his pocket. A search of the vehicle revealed a further two passports. All three documents appeared to have been altered by substitution of photographs. The offence of having a false instrument related to his possession of those passports.
6.
He was taken to the police station where a check revealed the outstanding warrant. He was granted police bail on the passport matters but, in relation to the warrant, he appeared in custody at Camberwell Magistrates' Court on 8th February 2003. Somewhat generously the magistrates granted him unconditional bail. He then failed to surrender to his police bail on 25th March 2003 and remained at large, yet again, until finally arrested for driving with excess alcohol on 21st January 2004. He then appeared at Tower Bridge Magistrates' Court on 30th January 2004, when he entered his pleas to the later offences and was committed to the Crown Court for sentence. In that way all outstanding matters came before the Crown Court on 5th April 2004.
7.
At the Crown Court, on 5th April, prior to mitigation, the judge heard defence submissions about the breach of bail issue and then gave a ruling in which he said that on the face of it there had been a clear breach of bail by the appellant, in absenting himself from the court in the latter part of 1999 and remaining at large until finally apprehended in 2003. He said in his ruling that the appellant's advocate had sought to raise what the judge regarded as no more than a 'shadowy possibility' that in February 2003 at the Magistrates' Court the appellant may have been told something which may have led him to believe that his breach of bail in 1999 to 2003 was not going to be pursued. But there had been no evidence from the appellant on the subject. Regrettably, the Magistrates' Court had not answered questions or notes in relation to events in February 2003 before that court, but given that there was nothing at all to support the proposition that the appellant's advocate was seeking to put forward in relation to those events, the fact that the Magistrates' Court had been unable to produce missing papers did not seem to the judge to avail the appellant at all. He went on to say that things might have been different if the appellant had advanced the relevant proposition on oath, but the appellant had not sought to do that and it seemed to the judge that there was nothing that should lead him to conclude otherwise than that the normal course of events should follow, namely that the appellant would have to be sentenced for a breach of bail. The judge did, however, make clear that he was not going to take into account the extra year of absence following the Magistrates' Court hearing in February 2003. The judge then invited the appellant's advocate to mitigate, which he did, following which the judge passed the sentences to which we have referred.
8.
Before we consider the grounds now advanced, we should say a little more about the appellant himself. He was born in December 1967 and is therefore 36 years of age. He had one previous conviction, in 1995, for using a document under the Road Traffic Act with intent to deceive, for which he received a community service order. On the occasion of sentencing for the present offences the court did not have the benefit of a substantive pre-sentence report concerning the appellant because of the appellant's failure to attend appointments.
9.
Mr Fidler, who appears before us as he did in the court below on behalf of the appellant, advances as his first ground the contention that the conviction for breach of bail was unlawful. The basis of that contention is that it is said that the appellant was not formally asked while at the Crown Court on 5th April 2004 whether he admitted the breach of bail. It is pointed out that the relevant offence under
section 6(1) of The Bail Act 1976
involves a failure to surrender to custody without reasonable cause and therefore it is necessary, where somebody has failed to attend at court in accordance with the requirements of bail, to determine whether that failure was or was not without reasonable cause. It is therefore necessary that the question whether the breach is admitted be put to the person concerned.
10.
It is submitted by Mr Fidler that the failure to put that matter to the appellant in this case was an irregularity that rendered what followed invalid. He invites the Court to issue a writ of venire de novo in order that the matter should go back to the Crown Court, so that the relevant question in relation to breach of bail can be put to the appellant.
11.
We have not received a transcript of what occurred at the Crown Court prior to the judge's ruling on the breach of bail issue, or in relation to what happened immediately after that ruling, but we proceed on the assumption that the question was not formally put to the appellant himself whether he admitted the breach of bail. It seems to us that, in the particular circumstances of this case, nothing turns on that omission. In
R v Hourigan
[2003] EWCA Crim 2306
, the Court pointed out that
section 6(1)
of the Bail Act envisages matters being dealt with by a relatively informal procedure. The Court said in paragraph 8:
"What, in our judgment, the judge should have done is put to the appellant, either directly or through his counsel, whether or not he admitted that he was in breach of
section 6(1)
and then there would have been absolutely no doubt about it."
In the present case, it is quite clear from the transcript of the judge's ruling on the breach of bail issue that the defence was given a full opportunity to indicate whether and to what extent issue was taken with the alleged breach of bail, and indeed to call evidence if it wished to do so. The submissions advanced by Mr Fidler on the appellant's behalf were advanced on the basis that a breach was admitted but that what had been said at the Magistrates' Court at the February 2003 hearing made it unfair for the appellant now to be punished for that breach. Those submissions were rejected, as we have already indicated. Inherent in them, however, was a plain admission of guilt of the Bail Act offence and, if the matter had been formally put to the appellant, as we accept it should properly have been put, there could only have been one answer. There was, in truth, no dispute over the appellant's guilt of the Bail Act offence. Mr Fidler proceeded to mitigate on his behalf on the basis that the offence was admitted.
12.
It seems to us that the way in which matters were dealt with, albeit less than perfect, was fully consistent with the principles set out in the judgment in
Hourigan
and that there is no basis for interfering with the conviction in respect of the Bail Act offence.
13.
The other aspect of the Bail Act offence is that of sentence. Mr Fidler submits that a sentence of 9 months' imprisonment consecutive for that offence is manifestly excessive. In his written submissions he referred to a number of cases which are in truth no more than examples of sentences passed in relation to particular facts. It is well established that in principle a sentence for failing to surrender to bail should be ordered to be served consecutively to any other sentence imposed at the same time for any other offence. The maximum sentence is 12 months. Even if one accepts that some modest allowance should be made for an admission of guilt, the fact is that, in the circumstances of this case, there was manifestly no defence to the charge and such allowance as might be made for a plea of guilty is very modest indeed. Having regard to those considerations, and the wider circumstances of the case, including, in particular, the length of time for which the appellant was at large, we are satisfied that the sentence imposed was neither wrong in principle nor manifestly excessive.
14.
We turn to consider the appeal against sentence in respect of the substantive offences. First, as regards the attempt to obtain services by deception, Mr Fidler emphasises the fact that although the attempt was to obtain £7,000, no loss was in fact suffered by the bank; it was only an unsuccessful attempt. He submits that, whilst the judge may not have been wrong to pass a custodial sentence in circumstances as they stood in 2004, he did indicate that he might have been persuaded to pass a non-custodial sentence, had the matter been dealt with in 1999 and had the appellant not absconded. Mr Fidler suggests that that tells in favour of only a short custodial sentence, and that the sentence of 9 months was manifestly excessive.
15.
In relation to the passport offence (the offence of having a false instrument) Mr Fidler emphasises that there was here no suggestion of actual use of the false passports. He refers to various cases including
R v Kefford
[2002] 2 Cr App R(S) 106 and
R v Silaiavski
[2000] 1 Cr App R(S) 23 and submits that an 18 month consecutive sentence for this offence was in itself manifestly excessive and leads to an excessive overall total.
16.
Whatever the position might have been, had the judge been considering the one offence by itself in October 1999, it is plain in our judgment that the combination of offences with which he was dealing in April 2004 make custody inevitable.
17.
As to the length of sentence, dealing first with the offence of obtaining services by deception, we accept that for an attempt of this kind, where the appellant was detected at a very early stage and no loss was suffered, it is generally appropriate to impose a lower sentence than for the full offence. On the other hand, the appellant did not have the mitigation of a plea, nor of previous good character. It seems to us that there is nothing wrong with the sentence of 9 months.
18.
As to the passport offence, a consecutive sentence was plainly right, given that this further offence was committed, not just while the appellant was on bail but while he was absconding in breach of bail. It is however relevant that this was simply a case of possession, not of use. Although there was more than one false passport in his possession, it is not possible, on the facts as known, to draw any inferences as to involvement in any wider criminal enterprise. In those circumstances, it seems to this Court that a sentence of 18 months consecutive, on a plea of guilty, was excessive and did produce an excessive total. What we propose to do is to reduce that sentence to one of 9 months' imprisonment still consecutive, which will meet the argument in relation to totality as well as in relation to the individual offence.
19.
For those reasons, we will allow this appeal to the extent of quashing the sentence of 18 months consecutive for the offence of having a false instrument and substituting a sentence of 9 months' imprisonment consecutive for that offence. As we have indicated, the rest of the matters stand.
20.
THE VICE PRESIDENT: Yes Mr Fidler?
21.
MR FIDLER: There is one matter, and that is on the basis that leave was granted on sentence, I ask for a representation order to be extended to allow-
22.
THE VICE PRESIDENT: We shall extend the representation order which relates to the bail matter to the sentence in relation to the passport offence.
23.
MR FIDLER: I am grateful, thank you very much, my Lord.