R v Adebayo (Adekunle)

Tuesday 17 April 2007

On 15 January 2007, in the Crown Court at Snaresbrook, before His Honour Judge Pardoe QC, the appellant pleaded guilty to two counts of possession of an identity document with intent to deceive. He was sentenced to two years' imprisonment on each count concurrent and was recommended for deportation. He appeals against the sentence of imprisonment by leave of the single judge.

The facts of the case were that on 7 November 2006 the appellant went to an employment agency called Future Force. In order to show his entitlement to obtain work, he produced a National Insurance card and a Nigerian passport. By virtue of the diligence of the attendant at the agency it was concluded that the documents were fake. The police were contacted and the appellant was arrested. When asked whether he was legally in this country and how he came to be here, he replied, “I'm just trying to get a job and survive”.

In interview the appellant's account was that he had entered the United Kingdom in 1997 (although there was no evidence to support that date). He said that he had come with a Nigerian passport, that he had lost the passport, had not reported it lost and had not tried to obtain another. He said that he had been referred to someone in 2002 (four years earlier) and had paid £2,500 for the two false documents which he produced in November 2006. When asked whether he had received any other such documentation, he said that he had also been given a Home Office letter but did not have it with him at the time of his arrest. He asserted in interview that he believed the passport was authentic. He admitted that he had used the passport and the National Insurance card to try to obtain a bank account via the internet.

The mitigation that was placed before the judge centred on the appellant's good character and on his plea of guilty, notwithstanding the initial stance taken in interview. However, Miss Candilio did not draw to the attention of the sentencing judge the two authorities on which she now relies, neither of which are guideline cases but both of which are of significance: R v Kolawole [2005] 2 Cr App R(S) 13 at page 71 and R v Mutede [2006] 2 Cr App R(S) 22 at page 161. Untutored by those authorities, the judge made no reference to authority in the sentence that he imposed. He said that the appellant was an illegal immigrant. He had obtained false documents from an acquaintance at the Mosque he attended for the payment of £2,500, who had used the documents in an attempt to obtain employment; they were flagrant offences; and the behaviour with which he was charged was precisely within the mischief that the Identity Cards Act 2006 (in breach of section 25 of which the appellant had admitted he was) was designed to prevent and to punish. Despite his early plea of guilty, a custodial sentence was inevitable and a term of two years' imprisonment was imposed.

The grounds of appeal, besides referring to his previous good character and his early guilty pleas, base themselves on the assertion that both documents were used at the same time and for a single purpose, namely to obtain employment. It was asserted that the facts of the case merited a lower threshold for sentencing. Two fortifications are put forward for that argument: first, the case of Mutede, upon which counsel has relied to support the primary proposition that the sentence should be six months' imprisonment; and second, the case of Kolawole, in which a bracket of twelve months to eighteen months' imprisonment was recommended by the Court of Appeal: Miss Candilio argued for a sentence at the lower end of that bracket.

In granting leave, the single judge mentioned three other recent decisions of this court in which reference was made to Kolawole: R v Dogan [2007] EWCA Crim 110; R v Adekayaoja [2007] EWCA Crim 584 and R v Cakraj [2007] EWCA Crim 766. Copies of those have been provided to us by the Court of Appeal Office.

We turn first to the question of whether a sentence of six months' imprisonment, for which Miss Candilio primarily contended, is arguably appropriate on the facts of this case by reference to Mutede. In Mutede the appellant pleaded guilty to possession of a counterfeit National Insurance card and counterfeit letters which were used to obtain employment in the United Kingdom whilst she was prohibited from doing so. It was accepted in that case that the appellant had a legitimate passport and a legitimate reason to be in the country, but that she had obtained the false immigration letters...