Neutral Citation Number: [2018] EWCA Crim 1502
Case No. 2018/00453/A3
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  9th  May  2018

B e f o r e:
LORD  JUSTICE  TREACY

MR  JUSTICE  EDIS

and

HER  HONOUR  JUDGE  MUNRO  QC
 (Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
- v -

HAMED  ADEREMI
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Mr G Williams (Solicitor Advocate) appeared on behalf of the Appellant 
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J U D G M E N T (Approved)
LORD JUSTICE TREACY:  I shall ask Mr Justice Edis to give the judgment of the court.

MR JUSTICE EDIS:
1.  The appellant, Hamed Aderemi, is now 38 years old. On 19th January 2018 in the Crown Court at Cardiff he pleaded guilty to an offence on an indictment of possession of an identity document with improper intent, contrary to section 4(1) and (2) of the Identity Documents Act 2010.  In addition, he pleaded guilty to an associated summary offence of working when disqualified from working by reason of immigration status, contrary to section 24B of the Immigration Act 1971.  On the same occasion he was sentenced to a term of fourteen months' imprisonment in respect of the offence contrary to the 2010 Act and to a concurrent term of four months' imprisonment in respect of the offence contrary to the 1971 Act.

2.  The appellant now appeals against that total sentence of fourteen months' imprisonment by leave of the single judge.

3.  The facts are as follows.  The appellant came to this country in 2013 on a student visa for the purpose of attending university.  He did not use any false identity document to enter the United Kingdom; nor did he intend to do so in the future.  His intention was to use the counterfeit Dutch identity card with which he had been caught to pretend to be somebody called Sergio Cairo to obtain work in order to support himself.

4.  The history before his arrest in respect of these offences is as follows.  In March 2014 the Home Office revoked his leave to remain as he had not taken up taken up university studies.  He did not, however, leave the country.  On 16th August 2017, despite having no status in this country allowing him to work, he went to a recruitment agency in Newport and gave them the false identity card.  They went through various employment checks and signed him on to their books.  He did not, however, undertake any work through that agency because subsequent checks led them to suspect his documentation and his relationship with them therefore came to an end.

5.  On 1st September 2017 he went to a second recruitment agency.  He used the same false Dutch identity card.  That second agency accepted this documentation as proof of identity and on 4th September 2017 he started work at a local brewery.  He worked for about ten weeks, until November 2017, and received payments into his bank account of around £2,875.

6.  When these matters came to light the police were contacted.  On 28th December 2017 they executed a search warrant at the appellant's address.  He was arrested and immediately admitted what he had done in a frank and open way.  He said that he had paid a friend £350 for the false Dutch identity card and he accepted that he had been working illegally whilst in this country. 

7.  There was, therefore, no information before the court as to how he had supported himself between the time when he entered the United Kingdom and August 2017 when he first approached the first of the two agencies described above, but it was known that he had not possessed this false Dutch identity card throughout that period.  It was, it appears, accepted that he had acquired it relatively recently before he first used it.

8.  The appellant has not previously appeared before the courts, having been, as we have said, in the United Kingdom now for some years.  The judge gave full credit for the guilty pleas which had been tendered at the first possible opportunity.  When sentencing he noted that the appellant had been in the United Kingdom for about four years which, he said, was a lengthy period of presence in the country when he had no right to be here.  The judge observed that he had not entered the country unlawfully with the use of any false identity documents and noted that he had formed a relationship while he was here.  

9.  The judge took a starting point of 24 months in relation to the offence on the indictment, reduced it to 21 months on account of the mitigating features which he identified, namely, the appellant's good character and his early admissions to the police.  He then discounted that sentence further by one-third to the sentence of fourteen months' imprisonment.

10.  The grounds of appeal argued on the appellant's behalf by Mr Williams before us today essentially assert that that starting point of 24 months was too long and out of line with the relevant authorities.  

Discussion and Decision
11.  The judge was referred by counsel to a number of decided cases.  We have seen a number of reports of previous decisions of this court which have arrived with our papers by that means.  It does not appear, however, that the judge considered specifically the decision of this court in R v Ovieriakhi [2009] EWCA Crim 452.  That is unfortunate, in our judgment, because that was a decision of this court which was specifically intended to be a source of guidance for sentencing judges.  In two subsequent decisions of this court the status of that decision as a source of guidance has been confirmed.  Those decisions are R v Lasgaa [2014] EWCA Crim 1822 and R v Achiampong [2015] EWCA Crim 1894.  The judge did have the decision in Lasgaa before him.  He decided that the present case as similar to that case on the facts and selected his starting point by reference to the somewhat higher starting point which had been upheld by this court in Lasgaa.  

12.  Lasgaa, however, was a case where the false identity card was to be used in the future to re-enter the United Kingdom after the appellant had left in order to marry in Germany.  The judgment makes clear that that is a highly significant feature in cases of this kind.  At [9] in Lasgaa the court explained the distinction between cases of which R v Kolawole [2004] EWCA Crim 3047 is one well-known example, and Ovieriakhi, which is the different kind of case to which we have already referred.  

13.  The other cases which the judge was invited to consider are all very fact-specific.  It is unnecessary for us to say anything further about them.

14.  Ovieriakhi involved the reduction by this court of a sentence of twelve months' imprisonment and a substitution in its place of a sentence of six months' imprisonment.  In that case the court was concerned to make clear that cases where the only misuse of false identity documents has been to attempt to obtain employment to earn a living are likely to be regarded as at the lowest end of the range, where sentences of that order were likely to be appropriate.

15.  This, in our judgment, was in reality such a case.  It is true that the appellant stayed in the United Kingdom for a long time after the time passed when he ought to have left, but his use of the identity document was, in truth, limited to the attempts to obtain employment, which we have already described.  

16.  In those circumstances, had the judge been referred solely to Ovieriakhi and invited to reflect upon it, we consider it likely that he would have taken a lower starting point.  We consider that justice in this case would be done by the imposition of a sentence based on a starting point of twelve months, reduced to nine months to take account of the mitigating features which the judge identified, and then reduced further by one-third to allow full credit for the plea of guilty.  That results in a sentence of six months' imprisonment.

17.  We therefore quash the sentences imposed by the judge and substitute in respect of the offence on the indictment, a sentence of six months' imprisonment, and in respect of the summary offence associated with it, a concurrent sentence of two months' imprisonment, making a total sentence of six months' imprisonment.

18.  To that extent this appeal is allowed.

19.  We have considered whether we should exercise our power to recommend deportation of the appellant in this case.  We have decided not to do so, but we wish to make it clear why that is so.  It appears to us that the decision as to whether the appellant should remain in the United Kingdom is likely to require consideration of his family life and Article 8 rights.  We are not well placed to express any view about any of that.  No doubt those considerations will be weighed carefully by the Secretary of State and in due course, if appropriate, by the First Tier Tribunal.  We consider it inappropriate that either the Secretary of State or the First Tier Tribunal should form the view that we have expressed any opinion about the future immigration status of the appellant.  We have simply decided to leave that question for consideration by authorities better placed than we are to deal with it.

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