Awoyemi & Ors, R v

Sentencing for a conspiracy to obtain, create and supply false identity documents must reflect the proven breadth of the operation, each offender’s role and participation, and the actual or reliably intended loss. The risk of wider criminal use may increase seriousness, but sentence must remain anchored to the conspiracy charged and the evidence proved. An unsubstantiated estimate of potential loss is not a reliable measure of the operation’s scale, and documents with an innocent explanation must not automatically be treated as part of the conspiracy.

Supplying false identities to others, rather than personally using them, does not reduce the conspiracy’s seriousness. Comparable card-fraud sentencing authorities may provide guidance but must be applied to the facts of the particular conspiracy. A guilty plea entered only when trial begins ordinarily attracts 10 per cent credit.

Three business partners appealed against sentence following convictions arising from a conspiracy to defraud involving genuine, forged and manipulated identity documents. Babatunde Awoyemi and Tony Adepoju were convicted after trial and each received seven years’ imprisonment. Olufemi Awoyemi pleaded guilty on the first day of trial and received six years’ imprisonment.

The prosecution proved that the appellants formed part of an organisation which obtained and created identity documents for supply to others who would use false identities for further offending. The established loss from American Express accounts exceeded £162,000, while the prosecution’s suggested potential loss of more than £2 million was not established as an actual measure of the conspiracy’s scale. The central issue was whether the judge’s seven-year starting point was excessive and, for Olufemi Awoyemi, whether his lesser role and late plea warranted a greater reduction.

1. The appeals against sentence were allowed. The judge was entitled to regard the conspiracy as very serious. It involved obtaining and creating false identity documents on a substantial scale for illegal use by others. The fact that the appellants supplied documents rather than personally using them did not lessen that seriousness.

2. However, sentence had to reflect the offence charged and the evidence proved. The charge was conspiracy to defraud, so references to possible terrorist use were inapposite. The only identified fraudulent use arising from the conspiracy concerned American Express accounts, with established loss of just over £162,000. The suggested potential loss of £2 million showed only that the established sum was a minimum; it was not a reliable indicator of the operation’s actual scale.

3. The court treated the cloned-card authorities, including Taj and others [2003] EWCA Crim 2633, Din and others [2004] EWCA Crim 3362, and Militaru and Bujor [2007] EWCA Crim 2531, as relevant guidance. They required attention to the breadth of the conspiracy, the offender’s position and participation, and actual and intended loss. The court also held that documents attributable to legitimate businesses or otherwise innocently explained could not simply be treated as part of the conspiracy.

4. On the overall facts, seven years was too high a starting point. A starting point of six years was appropriate. The four-to-five-year starting point adopted on the particular facts of Militaru and Bujor did not apply to this more serious conspiracy.

5. Babatunde Awoyemi and Adepoju were at the heart of the conspiracy. Their sentences were each substituted with six years’ imprisonment. Olufemi Awoyemi had a lesser role and was entitled to credit for his plea, but a plea entered on the first day of trial merited no more than the ordinary 10 per cent credit. His sentence was substituted with five years’ imprisonment. Time served on remand continued to count towards all sentences.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1725, the court allowed each appeal against sentence and substituted reduced custodial sentences.
• Trial court: Babatunde Awoyemi and Adepoju were convicted after trial and sentenced to seven years’ imprisonment. Olufemi Awoyemi pleaded guilty on the first day of trial and was sentenced to six years’ imprisonment. The court is not otherwise stated in the judgment.