Mokelu, R. v

For a substantial and carefully planned advance-fee fraud, the sentencing range must be assessed by reference to both the amount obtained and the aggravating and mitigating features. A defendant who is not the scheme’s architect may nevertheless receive a substantial custodial sentence where his role was essential to its success. Material aggravating features include prolonged offending, several participants, use of a false identity, and serious lasting financial and psychological harm to the victim.

A consecutive sentence for possession of a false identity document is inappropriate where its use was integral to carrying out the fraud. The sentence should instead be concurrent.

The appellant pleaded guilty in the Crown Court at Basildon to conspiracy to defraud and possessing a false passport with intent. The conspiracy was an advance-fee fraud in which the victim paid £352,937 after being induced to assist an alleged transfer of funds from Africa.

The appellant supplied bank accounts, used the false passport to open one of them, posed as a broker, and put pressure on the victim to make payments. The sentencing judge imposed four years’ imprisonment for the conspiracy, after credit for an early guilty plea, and 12 months’ imprisonment consecutively for the passport offence.

On appeal against sentence, the issues were whether the conspiracy sentence was manifestly excessive and whether the passport sentence could properly be consecutive.

1. The appeal was allowed in part. The four-year sentence for conspiracy to defraud was not manifestly excessive. The 12-month sentence for possessing the false passport was varied to run concurrently, reducing the total term from five years to four years.

2. The court accepted that the appellant was not the architect of the fraud and had no previous convictions. However, his role was essential. He provided the accounts into which the victim paid money, assumed the role of broker, used the false passport to open the second account, and exerted pressure upon the victim.

3. The fraud involved more than £350,000, was carefully planned, continued for about 18 months, involved at least three participants, and used false documents and counterfeit currency. Its consequences for the victim were grave and enduring. Those features justified treating six years’ imprisonment as the appropriate sentence after a trial and four years after full credit for the early guilty plea.

4. R v Trevor Clark [1998] 2 Cr App R (S) 95 gave only marginal assistance because it concerned theft in breach of trust. R v Dekson [2005] 1 Cr App R (S) 114 was a useful comparator, but subsequent sentencing guidance indicated that an offender in that position might now receive a heavier sentence.

5. The false passport had been used to open the account through which the fraud was carried out. Its possession was therefore integral to the conspiracy. A consecutive term overstated the distinct criminality and should have been concurrent.

• Court of Appeal (Criminal Division) Allowed the appeal in part and directed that the 12-month sentence for the passport offence run concurrently with the four-year conspiracy sentence.
• Crown Court at Basildon The appellant pleaded guilty on 20 April 2009 and, on 29 June 2009, received four years’ imprisonment for conspiracy to defraud and 12 months’ imprisonment consecutively for possessing a false passport.