Seward, R. v

A Drug Treatment and Testing Order must remain proportionate to the seriousness of the offending. The prospect of rehabilitation must not be given excessive weight where a serious offence has a damaging effect on its victim and deterrent custody is required.

Planned identity fraud is a particularly serious, pernicious and prevalent form of dishonesty. Its effects on an account holder and the banking system may justify a deterrent custodial sentence, even where the offender has drug dependence, has made rehabilitative progress and played a limited role in a wider fraud.

The appellant pleaded guilty in the magistrates’ court to offences of obtaining or attempting to obtain property by deception and using false instruments. He was committed to the Crown Court for sentence and received concurrent sentences of two years and six months’ imprisonment.

The offences involved obtaining a bank card through a false identity, withdrawing £10,000, and attempting to withdraw a further £5,000. The appellant appealed against sentence. He relied on drug dependence, a guilty plea, completed detoxification treatment, proposed employment and accommodation, and his asserted limited role in the fraud.

The central issues were whether a Drug Treatment and Testing Order was a proportionate alternative to custody and whether the concurrent sentence was manifestly excessive.

1. Appeal dismissed. The concurrent sentence of two years and six months’ imprisonment was justified.

2. The court applied the guidance in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106. A Drug Treatment and Testing Order is unlikely to be appropriate for serious offending involving violence or a particularly damaging effect on the victim. Sentencing must remain proportionate, so rehabilitation cannot be allowed excessive weight.

3. The planned execution of this identity fraud, coupled with its prevalence, made it too serious for that order. Identity theft causes shock and alarm to the account holder and has serious implications for the banking system. The order would have placed excessive weight on rehabilitation when a deterrent sentence was required. It could also create an inappropriate incentive for drug-dependent offenders to commit similar crimes.

4. In assessing custody, the court treated Odewale and others [2004] EWCA Crim 145 as confirming the particular seriousness of identity fraud. It also treated Clark [1998] 2 Cr App R (S) 95 as the starting point for monetary offending, while recognising that identity fraud may require deterrence beyond the usual approach.

5. The court considered the actual loss of £10,000, the potential loss of £15,000, the lack of recovery, and the absence of meaningful assistance after arrest. It also took account of the guilty plea, drug treatment, personal mitigation and the asserted role as a front man. Although 30 months was a stiff sentence, it properly reflected the need to deter this prevalent form of fraud.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence in [2005] EWCA Crim 1941.

• Crown Court: after committal from Nottingham Magistrates’ Court, imposed concurrent sentences of two years and six months’ imprisonment.

• Nottingham Magistrates’ Court: accepted guilty pleas and committed the appellant to the Crown Court for sentence.