Syam Hussain & Another [2019] EWCA Crim 1525

R v Syam Hussain and Muhammed Mohon Talukdar [2019] EWCA Crim 1525 was an appeal to the Court of Appeal (Criminal Division) by Lady Justice Hallett, Mr Justice Garnham and Mrs Justice May, which allowed both appeals and substituted community orders for immediate custody.

Mr Hussain and Mr Talukdar were convicted on 25 June 2019 of entering or becoming concerned in a money laundering arrangement. Each received eight months’ imprisonment. The registrar referred both applications for leave to appeal against sentence to the full court.

The case concerned courier fraud operated between late April 2015 and 1 June 2016. The underlying conspiracy involved a large number of individuals defrauding victims in Barrow-in-Furness, Droitwich and Ludlow. The method was for a conspirator to telephone elderly victims posing as a police officer investigating crime relating to the victim’s bank. The caller would request assistance through a mixture of charm, pressure and threat. When victims sought verification by calling 999 or 101, the conspirator kept the line open so that an accomplice could answer and verify the false story. Victims were then asked either to withdraw cash and hand it to a courier or to make cash deposits or transfers to nominated accounts. The conspirators targeted older people with sufficient balances to make the fraud worthwhile. The major players in the conspiracy had been tried in February 2019 and received sentences for fraud ranging from six years to 30 months, whilst those with more minor roles received sentences between 12 and 18 months suspended.

Mr Hussain was convicted of money laundering involving one fraudulent transaction. The victim, Mr Brown, a man in his late eighties who has since died, was contacted on 25 May 2016 and persuaded he was speaking with the police. He was directed to make payments totalling approximately £5,000 to nominated accounts and also directed to make an electronic payment of £9,100 to a bank account registered in the name of Podmore. Whilst he attempted to do so believing he was assisting the police, the transaction was withheld by his bank and no monies were transferred. Mr Hussain was linked to the Podmore account through screenshot messages sent from his mobile phone. One co-accused, Idris Ali, was in control of the recipient account and monitored it to confirm deposits. Mr Hussain received screenshots and forwarded them as directed.

Mr Talukdar was convicted of money laundering involving one fraudulent transaction. On 30 April 2016, Mr Harrison-Edward, a gentleman in his late eighties, received a phone call at home from someone claiming to be Sergeant Amy Browning from Barrow police station explaining he owed money. He was transferred to someone describing himself as Sergeant Reynolds at Scotland Yard who informed him he owed £7,450. Mr Harrison-Edward’s daughter spoke to the caller and was told to call 999 to verify the story. She was then told her father had to transfer £7,340 into an account in Mr Talukdar’s name at Natwest bank, with sort code and account number given. Mr Harrison-Edward went to the bank and made the transaction.

The sentencing judge found that Mr Hussain provided details of a bank account in the name of Podmore which was to be used to launder £9,100 defrauded from a victim in his late eighties, whilst Mr Talukdar agreed his account could be used to accept £7,340 defrauded from a man in his late eighties. No money actually reached either account because the police became aware of the ongoing fraud and prevented the transactions. The judge said that on the one hand the offending was part of a sophisticated arrangement indicating higher culpability, but on the other hand their involvement was limited to only one proposed transfer. Those two factors cancelled each other out. There being no other higher or lower culpability factors, the judge found the offences fell within culpability level B. The sums involved were at the upper end of level 6. Mitigating features for Mr Hussain were his good character and total absence of previous convictions, and for Mr Talukdar his virtual good character. The judge held that this significantly reduced the starting point. Mr Hussain was involved in an arrangement concerning a larger sum than Mr Talukdar, but had slightly more mitigation than Mr Talukdar, who had one unconnected previous conviction. Both were sentenced to eight months’ imprisonment. In addressing whether the sentences could be suspended, the judge considered the guidelines for the imposition of community and custodial sentences and concluded that a deterrent sentence was essential to deter others who might be tempted to similar conduct. The appropriate punishment could only be achieved by immediate custody.

Mr McCann on behalf of Mr Hussain argued that the judge erred by placing too great emphasis on the principal conspiracy. That resulted in a sentence with increased culpability, starting point and limitation on the ability to consider alternatives to immediate custody. He said the starting point was too high and despite reduction for personal mitigation, eight months was not commensurate with Mr Hussain’s offending. The sentence was manifestly excessive. Mr Manning on behalf of Mr Talukdar argued first that the starting point for this offence was a community order and there was no warrant for increasing it. Second, the sentence was wrong in principle because it gave rise to disparity with sentences imposed on others convicted in this case, notably Idris Ali, Mohammed Nazeen Miah and Yarsir Afzal.

The court held that there could be no complaint about the categorisation of these offences under the guidelines. The cases of both applicants were properly treated as falling into culpability category B and harm category 6. The guidelines directed that where characteristics fell under different levels of culpability, the court should balance those characteristics to reach a fair assessment of culpability. That was what the judge had done. By the end of the hearing, neither counsel quarrelled with that conclusion. The range of sentences identified in the guidelines for that category of money laundering was low level community order to one year’s custody. The judge took the top of that bracket as the starting point and reduced it by a third to reflect the personal mitigation of each applicant. The court noted that the sentencing council’s definitive guidelines on the imposition of community and custodial sentences required sentencing judges to ask whether it was unavoidable that a custodial sentence be imposed. Section 156 of the Criminal Justice Act 2003 provided that a sentencing court contemplating the imposition of a custodial sentence should obtain and consider a pre-sentence report unless it was of the opinion that that was unnecessary.

The court held that the appellants were young men with no or very little previous history of offending. They were both university students. There had been considerable delay for which they were not responsible between the offending and the trial. The applicable bracket in the guidelines for their money laundering offences included community orders. In those circumstances, it was incumbent on the judge to obtain a pre-sentence report before proceeding to sentence. A community order was, at the very least, a possibility which required consideration. Having heard submissions, the court directed the applicants’ counsel to approach the probation service at the Royal Courts of Justice and invited the probation service to speak to the applicants over the video link. The court expressed gratitude to Miss Innis, the probation officer, for providing an extremely helpful and thorough verbal report. In respect of Mr Talukdar, she said he was in the final year of his university course at the time of conviction and planned to resit the last year. He accepted he had to be punished. In respect of Mr Hussain, she reported that he too recognised he had fallen in breach of the law and was rightly punished. He was now a graduate who had already obtained lucrative employment in the city, hoped to return to that employment, and was a hardworking man well able to fill his days. The probation officer recommended in the case of both applicants that, reflecting the fact they had both been in custody for some weeks, an appropriate penalty would be between 40 and 50 hours’ unpaid work. The court agreed.

The court held that the sentences imposed were manifestly excessive and directed that they be substituted by community orders in the case of each applicant, with orders for their doing 50 hours of community service. The ground alleging disparity thus fell away. The court granted both applicants leave to appeal and allowed both appeals. It substituted for the eight months’ custody imposed on both appellants a community order for one year, in which each was to undertake 50 hours’ unpaid work. They would be required to do that work as and when instructed. If they failed to comply with that requirement, they stood at risk of being re-sentenced. They were required to stay in touch with the probation service and notify it of any change of address.

In short, the Court of Appeal held that the judge ought to have obtained pre-sentence reports before imposing immediate custody on two young university students with no or minimal previous convictions for money laundering offences falling within a guideline range that included community orders, and substituted community orders with 50 hours’ unpaid work for the eight-month custodial sentences.