Frank Ngwa & Niaz Khan [2019] EWCA Crim 1145

Frank Ngwa and Niaz Khan v R [2019] EWCA Crim 1145 concerned appeals against sentence by two men convicted of their involvement in a large-scale and sophisticated fraud. The Court of Appeal (Lord Justice Gross, Mr Justice Dove and Mrs Justice Cockerill DBE) dismissed both appeals.

Both appellants pleaded guilty to count 1, conspiracy to defraud contrary to common law, and count 2, a further conspiracy to defraud. Mr Ngwa was sentenced to 1 year 9 months’ imprisonment on count 1 (concurrent 1 year 6 months on count 2), with a consecutive sentence of 2 years 7 months for count 5, supplying articles for use in frauds contrary to section 7(1) of the Fraud Act 2006, and a further sentence for failing to surrender to bail. Mr Khan was sentenced to 1 year 6 months’ imprisonment on count 1 (concurrent 11 months on count 2) and a consecutive sentence of 1 year 6 months for count 6, possessing articles for use in frauds contrary to section 6(1) of the Fraud Act 2006. The offending ran between April 2014 and September 2016, a period of nearly two and a half years. A co-accused, Ryan Thomas, had been sentenced separately at Aylesbury Crown Court to a total of 5 years’ imprisonment for related offences.

Count 1 related to the fraudulent obtaining of many hundreds of railway tickets with a total value exceeding £55,000. Count 2 covered fraudulent credit card transactions for goods and services other than train tickets totalling just under £15,000. Count 5 concerned 23 iMessages and a Skype chat in which Mr Ngwa sent credit card and personal details and gave advice on how to carry out credit card fraud. Count 6 related to Mr Khan’s possession of cloned cards and card-making equipment, together with online chats in which he discussed fraud, forged bank statements and the use of credit cards.

Both appellants appealed with leave of the single judge on the ground that their sentences were manifestly excessive. Mr Ngwa contended that the judge had adopted too high a starting point, that his sentence exhibited too great a disparity with that of Ryan Thomas, and that insufficient regard had been paid to totality, in that the sentence on count 5 should have been concurrent rather than consecutive. Mr Khan argued that the starting point was too high, that the judge failed to reflect his mitigation, and that the principle of totality had not been properly applied, particularly given that this was his first custodial sentence and that he had pleaded guilty.

The court rejected Mr Ngwa’s submission that the starting point was too high. Mr Ngwa accepted that the offences properly fell within category 3, culpability B or borderline B/C, and that the appropriate starting point before credit for plea or basis of plea was 18 months. He contended that the judge erred in taking 24 months as the starting point. Mrs Justice Cockerill, giving the judgment of the court, held that this argument was based on a misreading of the sentencing remarks. It was clear that when the judge referred to 2 years she was referring to the appropriate sentence after a contested trial, bearing in mind basis of plea and aggravating and mitigating factors. Given the range of sentences for this level of offence, the seriousness of the offence and the serious aggravating factor of a previous relevant conviction, the uplift applied could not be said to be excessive, let alone manifestly so.

On the question of disparity, the court emphasised that the test is whether right-thinking members of the public would consider that something had gone wrong with the administration of justice, citing R v Pitson (1972) 56 Cr App R(S) 391. The court made clear that in general apparent leniency to one offender is no ground for reducing a proper sentence on another and that successful appeals on this ground would be highly unusual. The sentence reached by the judge, looked at by itself, was plainly a reasonable and appropriate one for this crime and was certainly not manifestly excessive. The disparity between the sentence and that of Ryan Thomas was not such that right-thinking members of the public would think that something had gone wrong with the administration of justice. Ryan Thomas had been sentenced separately, in a different court and by a different judge, for a different portfolio of offences. The crime which he committed with Mr Ngwa was sentenced concurrently and with regard to totality. The sentence he received for that offence was in a sense academic since it was likely to be shorter bearing in mind the principle of totality in the context of that fully concurrent sentencing exercise.

As to concurrency, the court held that the question was not whether the offences could have been sentenced concurrently, but whether the judge erred in sentencing consecutively. The guidelines for totality make clear that the structuring of a sentence in terms of concurrency and consecutiveness is not a bright-line decision. The structure may be adjusted appropriately in a number of ways to arrive at a sentence which is just and which proportionately and sufficiently reflects the overall criminality involved. The judge’s approach to totality was careful and well considered and the decision to make some of the sentences consecutive was not arguably wrong given both the different natures of the two sets of offences and the need to reflect the overall criminality in the context of prolonged and serious offending of this nature. It was firmly within the appropriate approach to the use of consecutive sentences as set out in the guideline. There was no need for the judge to have specifically given a reason for sentencing one of the offences consecutively. The result arrived at overall reflected the totality of offending being sentenced and was not manifestly excessive.

Turning to Mr Khan’s appeal, the court rejected the submission that the judge took too high a starting point. The grounds of appeal failed to engage with the relevant guideline or to set out why it was said that the starting point was excessive. The judge was plainly right to find that counts 1 and 2 were categories 3 and 4 respectively, and the contrary was not arguable. As to culpability on those counts, the judge’s conclusion that they fell into culpability B could not sensibly be criticised. While not the ringleader, there was ample evidence for the judge to conclude that Mr Khan was involved at a significant level in credit card fraud. That being the case she was plainly correct to conclude that the appropriate culpability band was B, insignificant role where offending is part of a group activity. It could not be said that her starting point was manifestly excessive by the time that the available mitigation was balanced by such factors as Mr Khan’s boasting of the frauds and instructing others how to enter into such schemes. The court did not accept that there were no aggravating factors or that there were no factors which gave a basis for starting towards the top end of the band based on the circumstances of the offending. There was also the fact that two offences were being sentenced concurrently and the guideline for totality makes clear that concurrent sentences will ordinarily be longer than a single sentence for a single offence.

Similarly as regards count 6, it could not credibly be said that the judge’s conclusion that this was greater harm, culpability A was erroneous. This was a case involving a sophisticated, well-planned series of offences over a sustained period of time. Her conclusion that the appropriate sentence after trial would have been 2 years could not be said to have been wrong in law or the period manifestly excessive, even allowing for the mitigation given the circumstances of the case. It was quite clear that the judge had well in mind the mitigation and reflected it in the sentence which she passed. As for totality, it was unclear in the grounds of appeal whether it was argued that it was not open to the judge to sentence count 6 consecutively. To the extent it was an issue, it plainly was open to the judge to sentence this count consecutively both because there was a separation between the factual background to count 6 and the other offences and to adequately reflect totality. Nor need there be a specific reduction for totality. What matters, as the guideline makes clear, is that the court when sentencing for more than a single offence passes a total sentence which reflects all the offending behaviour before it and is just and proportionate. One way of doing this is to sentence all or some of the offences concurrently or to sentence them consecutively in full or in part. It could not be said, bearing in mind the extent and seriousness of the criminality involved, that a total sentence of 3 years was manifestly excessive.

The court added one point of detail. The memoranda of conviction for the offence of failing to surrender reported that the offence was committed under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. It appeared that this power was not available to the Magistrates’ Court as the appellant had not been committed under any of the provisions set out in section 6(4). However, the offence could perfectly well have been committed pursuant to section 6(6) of the Bail Act 1976. Since the Magistrates’ Court could lawfully have committed the appellant to the Crown Court for sentence, the court considered that any error in recording the relevant statutory power did not affect the validity of the committal.

In short, the court dismissed both appeals, holding that the sentences passed by the judge were not manifestly excessive, that the judge had properly applied the relevant guidelines on categorisation, culpability and harm, that the disparity with the co-accused did not offend the principle in Pitson, and that the judge’s approach to totality and the use of consecutive sentences was careful, well considered and appropriate.

R v Pitson (1972) 56 Cr App R(S) 391