Chaudry Muhammad Akbar [2019] EWCA Crim 937

Chaudry Muhammad Akbar [2019] EWCA Crim 937 was an appeal to the Court of Appeal (Criminal Division) before Mrs Justice Simler and the Recorder of Nottingham (His Honour Judge Dickinson QC) in which the applicant’s application for leave to appeal against sentence, out of time, was refused.

Mr Akbar, aged 71, had pleaded guilty on 9 January 2018 at Manchester Crown Court to three offences: fraudulent evasion of Value Added Tax, making or supplying articles for use in fraud, and concealing, disguising, converting, transferring or removing criminal property. On 21 January 2019 His Honour Judge Rudland sentenced him to 18 months’ imprisonment on count one with concurrent terms of 12 months on counts two and three, and imposed a victim surcharge order.

The offending concerned two companies of which Mr Akbar was a director, Hyder Engineering Limited and Thermal Trading Limited, both registered for VAT. A compliance inspection in November 2015 revealed that the applicant had been making fraudulent claims for zero rating on exports not justified by bills of lading and destinations. He had caused invoices relating to small purchases to be doctored to represent far greater trading and to support fraudulent VAT reclaims. Between June 2013 and November 2015 he reclaimed just over £250,000 when the true extent of trading was only a few thousand pounds. A search recovered digital media showing instructions from the applicant to alter or create false invoices. Banking records revealed large cash deposits and withdrawals and transfers of money from company accounts to his personal accounts or to family members’ accounts. When interviewed he admitted responsibility and said he would provide further information, though he ultimately did not do so. He entered a guilty plea on a full facts basis and had no previous convictions.

The pre-sentence report recorded that he accepted responsibility and expressed shame. It described health conditions including type two diabetes, chronic obstructive pulmonary disease, hypertension and high cholesterol. He was undergoing tests for suspected age-related short-term memory loss, displayed shaking in his right hand and was on anti-depressant medication. He was assessed as low risk of re-offending. The author proposed a community disposal if custody could be avoided. The applicant also provided a small file of medical letters and appointment letters which were handed to the judge.

The judge correctly identified this as culpability A and category 5 harm under the Definitive Guideline on fraud offences, based on approximately £250,000. The starting point for £300,000 was four years’ custody with a range of two and a half to five years. The judge described the offending as a conscious and deliberate abuse of trust placed in those registered for VAT to provide accurate information. He identified as mitigating features the applicant’s age, ill health and previous good character, and afforded full credit for the guilty plea. The three counts reflected components of the same fraudulent enterprise so totality was reflected in count one with concurrent sentences on the others. The judge took a starting point of three years to reflect the slightly lower amount, reduced this to two years for the guilty plea, then deducted a further six months to reflect personal mitigation, arriving at 18 months’ imprisonment.

The application for leave to appeal was out of time. The applicant instructed fresh representatives and levelled criticism at his former legal team, claiming he had requested medical reports be placed before the sentencing judge about his mental health and was told this would be done but no reports were obtained. The applicant waived privilege. His former solicitors and counsel responded that there were no such instructions and that mental health was not raised beyond the pre-sentence report. His physical conditions had been addressed through the small file of letters handed to the judge. After sentence the applicant had expressed himself happy for advice on appeal but said he would pursue it only if meritorious. Counsel advised that the sentence was minimal for the fraud committed and no appeal was recommended, which was why none was lodged in time.

On appeal, Mr Brian Kennedy relied on a psychiatric report from Dr Q A K Lodhi dated 27 February 2019, GP reports and medical records dated 21 February 2019, and prison medical records dated 5 March 2019. The psychiatric report stated that the applicant’s history and presentation were in keeping with a diagnosis of Alzheimer’s dementia causing moderate cognitive impairment and moderate to severe depression. The report stated that the applicant was struggling with imprisonment and that his depression and physical illnesses were likely to worsen or cause risk if not properly managed. Mr Kennedy contended that whilst the custody threshold was passed, the sentence did not properly reflect the applicant’s extreme age, mental and physical health, remorse and offers of restitution, and was manifestly excessive. He submitted that in the round, taking into account the updated information and time served, a suspended sentence could now be imposed.

The court dealt first with the assertion of remorse and restitution. There was no evidence of any reparation. No monies had been repaid at sentence despite a year having elapsed since the guilty plea, and even now Her Majesty’s Revenue and Customs had received no payments at all. The court regarded the applicant’s expressions of a wish to make reparation as of little value given those unfulfilled offers and considered that this inevitably cast doubt on the suggestion of remorse.

The court received a report from Andrew Owen, the Primary Care Manager at Her Majesty’s Prison Manchester. Mr Owen described the applicant’s physical and mental medical conditions as under control and stable at present. The applicant was taking medication. From the medical records, the applicant appeared to be coping reasonably well in prison. He had been seen for memory loss and Parkinsonian-like symptoms in his right hand and had been referred to appropriate services. Mr Owen stated that considering his age and physical problems, the applicant was managing prison life reasonably well from a medical point of view and was receiving medical care comparable to that he would receive in the community at large.

The court emphasised that the serious medical condition of an offender does not automatically entitle an offender to a lesser sentence than would otherwise be appropriate, even when that medical condition may be difficult to treat in prison. Nonetheless, questions of old age and ill health, which often go in tandem, can be material mitigating considerations. The focus is usually on the extent to which a custodial sentence will be more onerous for the offender compared to a younger, fitter defendant. Those factors must be balanced against the gravity of the offending, including the harm caused and the public interest in setting appropriate punishment. Old age and ill health do not give licence to disregard the law.

The court was clear that the sentencing judge had very much in mind the applicant’s age and had taken account of all the evidence before him. He was cognisant of the applicant’s conditions of ill health which were well summarised in the pre-sentence report. This was not extreme old age but old age and ill health conditions which were properly to be considered. On the other hand, this was serious offending with serious harm caused to the public purse and the public interest required appropriate punishment. The applicant’s sentence could properly have been longer given the culpability and harm involved. The sentencing judge made proper proportionate allowance for the personal mitigation available and the court could find no fault in the length of the sentence imposed.

As to suspension, the court accepted that the sentence was one that could have been suspended. However, the judge had carefully weighed all the factors and concluded that appropriate punishment could only be achieved by immediate custody given the nature and value of the offending. That was a conclusion amply open to him and one that could not be impugned. The applicant’s personal mitigation was plainly catered for by the significant reduction in the length of the immediate custodial sentence. In short, the application for leave to appeal against sentence was refused, and no purpose would be served in extending time, which was also refused.