Olanrewaju Bolaji Otukoya [2019] EWCA Crim 1056

Olanrewaju Bolaji Otukoya [2019] EWCA Crim 1056 concerned a renewed application for leave to appeal against a sentence of five years’ imprisonment for conspiracy to defraud, which the Court of Appeal refused.

On 14th August 2018 in the Crown Court at Southwark, Mr Otukoya pleaded guilty to conspiracy to defraud contrary to common law. On 12th October 2018 he was sentenced to five years’ imprisonment by the Recorder. His two co-conspirators, Mohsin Abbas and Anjam Shah, both employees of Royal Mail, had pleaded guilty to conspiracy to defraud and other offences in 2016 and had been sentenced to five years and three months and four years and one month respectively. Their appeals against sentence had been dismissed by the Court of Appeal on 19th January 2017.

The conspiracy involved the interception and theft of cheques from the Royal Mail sorting office in Luton. Mr Otukoya, though not employed by Royal Mail himself, acted as the banker for the conspiracy, laundering stolen cheques through the banking system for the benefit of all three conspirators. Cheques belonging to The Peverel Group worth in excess of £1,800,000 were stolen between April 2010 and March 2013, and other companies lost at least a further £119,000. Mr Otukoya created, monitored and funded fraudulent accounts through which the cheques were paid. Surveillance observed him conducting ATM service enquiries and balance checks on the beneficiary accounts. When arrested at his home on 30th March, he made no reply to caution. Stolen cheques were recovered from his home and from vehicles. The evidence showed that Mr Otukoya received a forty per cent share of the proceeds, the greatest share received by any one conspirator.

Mr Otukoya was initially on bail but then absconded to Nigeria. He was eventually extradited and first appeared at Westminster Magistrates’ Court on 17th July 2018. Whilst contesting extradition, he had spent seventy-five days in custody in Nigeria. The applicant, then aged fifty-three, had six convictions for seventeen offences spanning the period from May 1997 to February 2011, including fifteen fraud and kindred offences.

In his sentencing remarks the Recorder noted that whilst the co-conspirators had been in breach of trust, Mr Otukoya would not be sentenced on that basis, though the Recorder did not ignore that element of the conspiracy. Applying the relevant sentencing guideline, it was conceded that the offending fell within category 1A, with a starting point of seven years’ imprisonment and a range of five to eight years. The Recorder considered that the starting point was appropriate and increased it by only three months to reflect the applicant’s previous convictions, as he was assessed as low risk of reoffending. That gave a notional figure of eighty-seven months. Despite the absconding and resistance to extradition, the Recorder allowed a discount slightly more generous than twenty-five per cent to reflect the applicant’s conduct since his return, reducing the sentence to sixty-five months. He then exercised his discretion to deduct a further five months to reflect the time spent in custody contesting the extradition proceedings.

The grounds of appeal contended, first, that the Recorder had erred in his approach to aggravating the starting point based on previous convictions and failed to give sufficient credit for the guilty plea, and secondly, that the sentence was manifestly excessive when compared to the co-defendants and did not sufficiently distinguish between them. In further written grounds submitted in person, Mr Otukoya argued that the Plea and Trial Preparation Hearing on 14th August 2018 was the first and earliest opportunity to plead guilty and so a full one-third discount should have been given.

The Single Judge refused permission. He held that the sentence was neither manifestly excessive nor wrong in principle. The Single Judge noted that Mr Otukoya was the banker for the conspiracy, responsible for creation, monitoring and funding of the fraudulent accounts, and was the recipient of forty per cent of the proceeds. Though the applicant must have known of the co-conspirators’ gross breach of trust, the Recorder had specifically indicated that he did not aggravate culpability on the basis of breach of trust. The applicant had played a leading role in a category 1A offence and the judge had been fully justified in taking seven years as the indicative starting point. Previous offending comprising a history of fraudulent offences was a significant aggravating factor, and the applicant had been fortunate that the judge added only a notional three months. The Single Judge concluded that in any event a sentence of five years, given the applicant’s role and aggravating factors balanced against mitigating factors, was not arguably excessive. He was fortified in that conclusion by the judgment of the Court in the appeals of Mr Abbas and Mr Shah, whose culpability was not as great as Mr Otukoya’s.

Lord Justice Green, delivering the judgment of the Court, agreed with the Single Judge’s conclusion. First, regardless of the fact that no plea was taken at the Plea and Trial Preparation Hearing, the applicant could have indicated his intention to plead guilty when he first appeared at Westminster Magistrates’ Court on 17th July 2018, a month before the PTPH. Secondly, even if strictly the PTPH in August 2018 could be said to have been the first stage in the proceedings and thus a discount of one-third might have been warranted under the relevant guideline, the Court did not consider that the overall sentence was arguably manifestly excessive. The sentencing judge had been generous in raising the sentence above the starting point by only three months to take account of the applicant’s very serious record of previous offending involving multiple fraud offences. Thirdly, as regards the claim of disparity between his sentence and that of his co-conspirators, the applicant had played the central and more serious role in the conspiracy as the banker for the proceeds of the fraudulently acquired cheques and was the person who received the largest share of the proceeds. The sentencing judge had fairly allowed a discount to reflect the time in custody. The Court added in passing that in fact the applicant had been entitled to such a reduction by way of deduction of remand days under section 243(2) of the Criminal Justice Act 2003.

In short, it was not arguable that the sentence of five years was manifestly excessive or wrong in principle, and permission to appeal was accordingly refused.