Majad Hussain [2019] EWCA Crim 1534

In Majad Hussain [2019] EWCA Crim 1534, the Court of Appeal (Lord Justice Gross and Mr Justice Stuart-Smith) dismissed an appeal against a total sentence of four years’ imprisonment for fraud by false representation and possession of articles for use in fraud.

Mr Hussain had pleaded guilty on 10 December 2018 in the Crown Court at Reading before His Honour Judge Nigel Daly. On 21 January 2019 he was sentenced to 35 months’ imprisonment concurrent on five counts of fraud by false representation (counts 3, 4, 5, 10 and 11) and 13 months’ imprisonment consecutive on five counts of possessing articles for use in fraud (counts 14 to 18), those counts being concurrent with each other.

The appellant, aged 33 at sentence, defrauded members of the public by tricking them into buying cars that were not as advertised. He sold vehicles irrespective of their defects without disclosing those defects to buyers. Engineers who examined the vehicles determined that they did not meet the representations made at the point of advertising or sale. The vehicles were represented as sound and roadworthy, but some had serious structural and mechanical defects which exposed their drivers and other road users to risk of serious harm or worse. The fraud was sophisticated and systematic. Documentary evidence of misrepresentation included service books that had been invented and supported with false stamps purporting to be from garages. When buyers realised they had been conned and wanted their money back, Mr Hussain refused to repay the money and the buyers were threatened or bullied into going away. On 16 November 2016, Trading Standards searched the business premises and recovered a number of false stamps and false service histories, some of which had featured in vehicles that had been sold. Mr Hussain had a previous conviction in 2012 for which he received 14 months’ imprisonment for fraudulently evading VAT and making articles for use in fraud.

The sentencing judge applied the fraud guideline. He concluded that Mr Hussain played a leading role and that the offending was fairly sophisticated with a number of victims, fitting into the high culpability category 4 of the guideline. However, the judge found the impact on the victims was considerable and high, justifying a move from category 4 to category 3 with a starting point of three years’ imprisonment. Aggravating features included the previous convictions for similar offences only a few years earlier. The judge placed the offending towards the top of the range with a starting point of 42 months, reduced to 35 months to reflect approximately 15 per cent credit for the guilty plea. For the possession counts, the judge found high culpability given the large number of items with potential to facilitate fraudulent acts against numerous victims involving considerable sums. He adopted a starting point of 18 months, increased to 30 months for aggravating factors, then reduced to 24 months for the plea. Recognising that the resulting total of 59 months was too high, the judge reduced the sentence on the possession counts to 13 months consecutive, making a total of 48 months.

Mr Hendron advanced three principal grounds of appeal on behalf of Mr Hussain. First, the judge was wrong to categorise the case as one of high impact; the impact was purely financial as none of the physical risks had materialised, and this high impact categorisation had provided the foundation for moving up a category. Second, there was inherent danger of double counting, given overlap between the fraud and possession counts, and having found a leading role, great care was needed not to double count when considering the sophisticated nature of the offending. Third, the dangers of double counting were aggravated by the consecutive approach; the correct approach would have been concurrent sentences given the relationship between all the offences. Mr Hendron placed some reliance on R v Abuissa [2018] EWCA Crim 2420.

The Court of Appeal rejected each ground. Lord Justice Gross held that it ultimately should not matter whether sentencing was approached on a consecutive or concurrent basis, as either way double counting must be avoided and totality taken into account. If approached concurrently, the possession charges would comprise a significant aggravating factor when sentencing the fraud counts. The court would itself have favoured a concurrent approach but emphasised that the question was not how the judge structured the sentence but whether the total sentence was manifestly excessive. The court kept well in mind that there were five specific fraud offences and was entitled to have regard to their number. On the question of impact, whilst the court could see some force in the challenge on a very literal approach to the guideline, looking at the five offences overall and bearing in mind that the risks to which purchasers were exposed were physical as well as financial, it was difficult to quibble with the judge’s categorisation. Further and in any event, the judge would have been amply entitled to move up to the higher category having regard to all the circumstances. The court did not regard Abuissa as laying down any principle; on the facts of that case the court had simply considered the judge should have sentenced concurrently. The court was content to test the present sentence by assuming the sentences should have been concurrent.

The court held that the question was not whether it agreed with the structure but whether the total sentence was manifestly excessive. The features included five specific offences of fraud by false representation; offending over a sustained period; a leading role; at least considerable detrimental effect on victims; a very relevant and fairly recent previous conviction; sophisticated offending demonstrated and aggravated by the possession counts; persistent offending in that when victims sought return of their money they were treated very badly indeed, going beyond conduct inherent in the fraud; potential of the articles to facilitate further fraudulent acts; and entitlement only to very limited credit for a late guilty plea with no question of remorse beyond that plea. Whether structured consecutively or concurrently, the court was wholly unable to conclude that the sentence was manifestly excessive. Looked at as a whole, there was ample justification for the bracket in which the judge placed the case and any adjustment would and could involve tinkering only.

In short, the appeal against the total sentence of four years’ imprisonment for systematic car fraud offences was dismissed, the Court of Appeal finding ample justification for the sentencing bracket adopted and no manifest excess whether the structure was viewed as consecutive or concurrent.

Abuissa [2018] EWCA Crim 2420