De Oliveira, R. v

A sentencing guideline for using a false passport, or possessing one with intent to use it, does not govern simple possession of a false passport under Section 5(2) of the Forgery and Counterfeiting Act 1981. The offences have materially different elements and maximum sentences. A court must sentence the offence of conviction, including its two-year maximum, rather than apply the guideline range for the more aggravated ten-year offences. Simple possession of a false passport nevertheless remains serious.

The appellant, a Brazilian national of previous good character, pleaded guilty at Bow Street Magistrates’ Court to possessing a false passport contrary to Section 5(2) of the Forgery and Counterfeiting Act 1981. He was committed to the Crown Court for sentence.

At Southwark Crown Court, a Recorder imposed 15 months’ imprisonment after referring to R v Kolawole [2005] EWCA Crim 3047. The appellant appealed with leave, contending that the Recorder had applied a guideline concerning more aggravated false-passport offences with higher maximum sentences.

1. Appeal allowed. The court quashed the sentence of 15 months’ imprisonment and substituted eight months’ imprisonment.
2. The Forgery and Counterfeiting Act 1981 creates materially distinct false-passport offences. Using a false passport to induce acceptance as genuine under Section 3, and possessing it with that intended use under Section 5(1), each carry a maximum of ten years’ imprisonment. Mere possession without lawful authority or excuse under Section 5(2) carries a maximum of two years.
3. The guideline in R v Kolawole [2005] EWCA Crim 3047 principally addressed the first two, more aggravated, offences. Its usual range of 12 to 18 months for one false passport, even after a guilty plea by a person of good character, could not be treated as the appropriate starting point for the Section 5(2) offence.
4. The Recorder did not appear to have appreciated that distinction. In light of the appellant’s guilty plea and the two-year maximum for the offence of conviction, 15 months was too high. The court nevertheless stressed that possession contrary to Section 5(2) remained a serious offence.

• Court of Appeal (Criminal Division) Allowed the sentence appeal, quashed the 15-month sentence and substituted eight months’ imprisonment.
• Southwark Crown Court Sentenced the appellant to 15 months’ imprisonment on 26 August 2005.
• Bow Street Magistrates’ Court Accepted the appellant’s guilty plea to an offence under Section 5(2) of the Forgery and Counterfeiting Act 1981 and committed him to the Crown Court for sentence.