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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mokelu, R. v [2010] EWCA Crim 288 (16 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/288.html Cite as: [2010] 2 Cr App Rep (S) 87, [2010] EWCA Crim 288, [2010] 2 Cr App R (S) 87

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16th February 2010

1. LORD JUSTICE MOORE-BICK: On 20th April 2009, at the Crown Court at Basildon, this appellant pleaded guilty to conspiracy to defraud and possession of a false identity document (a false passport) with intent and on 29th June 2009 he was sentenced by His Honour Judge Clegg to four years' imprisonment in respect of the conspiracy and 12 months' imprisonment consecutive in respect of the possession of the false passport, making five years' imprisonment in all. He was recommended for deportation. He now appeals against sentence by leave of the single judge.
2. The conspiracy involved an advance fee fraud perpetrated on a consultant surgeon. The victim received an e-mail inviting her to lend her assistance to the transfer of US$300 million from a bank account in Africa to this country. The proposal was that, in return for the use of her bank account, she would receive 40 - 50 per cent of that sum. Despite some initial scepticism, she was persuaded to become involved. Between August 2007 and January 2009 the victim had various meetings with and received e-mails from a man who called himself Mr Heyerman. From time to time he told her that money was needed to make various payments to enable the funds in question to be released. At one of the meetings he produced a briefcase containing a large amount of forged bank notes, some of which he gave her.
3. It was the prosecution case that Mr. Heyerman was the appellant. He introduced himself to the victim as a broker. In response to his request for money, she paid various amounts into his account with the Nationwide building society and subsequently into another account which he opened in the name of Paul Pepple, using the false passport. The victim was told that the money was needed for things such as brokers' fees, lawyers' fees, indemnity bonds, tax and penalties for late payment. In all she paid the appellant £352,937. In order to obtain that money she first drew on her own savings, then borrowed money from friends and relatives, who also took out loans, and finally remortgaged her house to obtain a further loan of something over £200,000. In order to encourage her to make these payments, the appellant told the victim that other investors were also interested in the scheme. At one point she was warned of various unpleasant consequences that would follow if she tried to withdraw.
4. In early February 2009 the appellant withdrew £20,000 in cash from the Pepple account. He was arrested shortly afterwards in possession of the money. He was also found at that stage to be in possession of the false Nigerian passport which he had used to open the account.
5. When the police searched the appellant's home they found an attaché case containing the forged currency to which we have referred. A mobile telephone was recovered which contained a number that the victim had been told to call during the course of the fraud. Telephone numbers for the victim were stored under the words "Miracle", "Miracle 2" and "Miracle 3". None of the others involved in the conspiracy, of whom there were at least two, were caught.
6. The appellant pleaded guilty to these offences on the following basis: that he had opened the first bank account in May 2006 as a perfectly legitimate account; that the fraud was started by two others, upon whose instructions he had acted throughout; that after every transaction in which he was involved he had been required to telephone or otherwise contact others, who took the decisions about what the next steps should be; that he had received no more than 10 per cent of the total funds obtained through the fraud; that he looked after various items in the course of the fraud, including the false currency and other documents, but that the others involved had keys to his flat in order to have access to them; that he did not meet the victim in person and was not involved in the arrangements under which she met others involved in the fraud; that the e-mails sent to the victim were sent by others and that the transfer of the money was arranged by others; and finally, that he closed the original bank account used in the fraud in an attempt to distance himself from the conspiracy, but had been pressured into setting up the Pepple account.
7. The victim said that she had been left feeling very upset and with huge feelings of guilt for having let down her family and close friends. Having parted with a very substantial amount of money, she was struggling to cope with repaying her debts to them as well as her mortgage. She had difficulty in relating and talking to her patients, because the matter had caused her considerable personal embarrassment. It had been her intention to use the money she had been promised to set up medical facilities in Africa.
8. When passing sentence the judge accepted that the appellant had not been the architect of the scheme, but noted that he had made available the two bank accounts into which the victim had been persuaded to pay the money. He had also posed as a financial broker in order to give the scheme an air of professional legitimacy and had put pressure on the victim to make payments.
9. The judge took the view that the appropriate sentence for the conspiracy offence alone would have been six years' imprisonment after a trial, but that giving the appellant full credit for his guilty plea at the first opportunity, it would be reduced to four years. He imposed a sentence of 12 months' imprisonment consecutive for possessing the false passport that the appellant had used to open the Pepple account.
10. The grounds of appeal are that a sentence of four years' imprisonment for the fraudulent conspiracy was manifestly excessive and that it was wrong in principle to pass a consecutive sentence in respect of possessing the false passport. It is also said that the sentence was too long overall.
11. This kind of fraud is unfortunately widespread and often results in innocent victims being tricked out of very large sums of money. In this case the amount involved was very substantial, over £350,000, and its loss has had a very serious effect on the victim, not just financially but also psychologically. Although of a common type, it was carefully planned and involved the use of false documents and counterfeit currency to encourage the victim.
12. Mr Volz, who has appeared on behalf of the appellant this morning, has drawn our attention to the cases of R v Trevor Clark [1998] 2 Cr App R (S) 95, and R v Dekson [2005] 1 Cr App R (S) 114. In Trevor Clark the appellant, who was the bursar of a charitable body and acted as the treasurer of his local church, stole £400,000 from his employer and £29,000 from the church. It was a case in which the court was invited to consider the guidelines that had previously been laid down in the case of R v Barrick (1985) 7 Cr App R (S) 142 because it was a case involving theft in breach of trust. The appeal was allowed, the sentence being reduced from one of five years' imprisonment to one of four years' imprisonment. We find that case to be of only marginal assistance because, as we have said, it involved theft in breach of trust, which does not arise in the present case.
13. In Dekson a sentence of six years' imprisonment for obtaining £1.7 million by means of an advance fee fraud was upheld by this court on appeal, although in that case the appellant had been convicted following a trial. Mr Volz submitted that the circumstances of that case were considerably more serious than those of the present case, not only because of the amount of money involved, which was considerably greater than in this case, but also because the defendant, who was one of the leading, if not the leading, organiser of the conspiracy did not plead guilty. We note, however, that the case came before the court in October 2004, since when things have moved on to some extent. In particular, guidelines were published in October last year by the Sentencing Guidelines Council on sentencing for fraud of this kind, which indicate that for an offence involving such a large amount of money the appropriate starting point is four years' imprisonment with a range from four to seven years' imprisonment following conviction. That suggests to us that a defendant in the position of Dekson would now be likely to receive a somewhat heavier sentence than was imposed in his case.
14. The range suggested by the Sentencing Guidelines Council for an offence of this kind involving £300,000 is three to five years' custody, but it is necessary to have regard to the aggravating and mitigating features of the case, since they may justify a sentence somewhat above or below the suggested range. A number of the aggravating features identified by the Sentencing Guidelines Council are present in this case. They include, first, the number of people involved in the offence - in the present case there were three, of whom the appellant was one; second, the fact that the offending was carried out over a significant period of time - here it continued over a period of some 18 months or so; third, the use of another person's identity - in this case there was the use of a false passport to open the Pepple account; and last, but by no means least, a lasting effect on the victim – in this case the effect has been very significant, as can be seen from what we have already said on this point.
15. In this case the appellant, who had no previous convictions, was not the architect of the scheme, but he played an essential role in it and was directly instrumental in its success. This fraud has had a very significant effect on the victim, who feels responsible to her friends and family, whose money she has borrowed and lost, and is now struggling to meet the debts she had incurred as a result. Having regard to the number and nature of the aggravating factors to which we have referred, we are of the view that the judge was entitled to regard six years' imprisonment as appropriate following a trial, leading to a sentence of four years' imprisonment following an early plea.
16. In our view, however, it was not appropriate to pass a consecutive sentence for the possession of the false passport, the use of which was, as Mr Volz has submitted, an integral part of the fraudulent scheme. It would have been more appropriate for that sentence to have been ordered to be served concurrently. We therefore order that the sentence of 12 months' imprisonment imposed on count 2 should be served concurrently with the sentence of four years' imprisonment imposed on count 1. To that extent this appeal is allowed.