Neutral Citation Number: [2011] EWCA Crim 185
Case No: T20097076/T20090202
CAO 201004114 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
HHJ HOOTON and HHJ BURFORD QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/02/2011
Before:

LORD JUSTICE JACKSON
MR JUSTICE WYN WILLIAMS
and
HHJ BARKER QC Common Sergeant of the city of London
(Sitting as a Judge of the Court of Appeal Criminal Division
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Between:

	THE QUEEN	Respondent	
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	YASMIN CHOUDHARY
TIPU SULTAN AHMED	First Applicant
Second Applicant	

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Suzanne Goddard QC for the First Applicant
Francis Laird for the Second Applicant

Hearing date: 3 February 2011
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Judgment

Mr Justice Wyn Williams: 
1.	On 7 June 2010 at the Crown Court at Winchester HHJ Hooton sentenced Ms Yasmin Choudhary to concurrent terms of 3 years’ imprisonment for 8 offences of obtaining a money transfer by deception, one offence of attempting to obtain a money transfer by deception and 3 offences of fraud. All those offences related to mortgage frauds.  On the same occasion Ms Choudhary was sentenced to a concurrent term of 9 months’ imprisonment for a further offence of obtaining a money transfer by deception.  That offence involved benefit fraud.  
2.	Ms Choudhary had entered guilty pleas to the counts upon the indictment for which she was sentenced on 22 February 2010 which was the day upon which a trial was due to commence.  However, no jury was sworn and some time in advance of 22 February 2010 Miss Choudhary’s advisers had circulated a written basis of plea upon which she was prepared to plead guilty to the offences with which she was charged.
3.	On 24 July 2009 Mr Ahmed had pleaded guilty to 4 counts on the same indictment.  He was not jointly charged with Ms Choudhary; he was charged with 1 offence of obtaining a money transfer by deception and 3 offences of fraud; all four offences related to mortgage fraud.  Additionally, Mr Ahmed faced an entirely separate indictment.  On 11 December 2009 he pleaded guilty to a single offence of conspiracy to contravene s170 of the Customs & Excise Management Act 1979.  In short, he accepted being party to a conspiracy to import cigarettes into the country illegally by evading the duty properly payable upon them.     
4.	Mr Ahmed appeared for sentence on 29 June 2010.  HHJ Burford QC sentenced him to concurrent terms of 16 months’ imprisonment for the offence of obtaining a money transfer by deception and the 3 offences of fraud.  However, he also sentenced Mr Ahmed to 32 months’ imprisonment for the conspiracy offence and directed that this sentence should be served consecutively.  Accordingly, the total sentence passed upon Mr Ahmed was 4 years’ imprisonment.
5.	Both Miss Choudhary and Mr Ahmed sought leave to appeal against their sentences.  Their applications were refused by the same single judge.  They have renewed their application for permission to appeal against the length of the sentences imposed upon them.
6.	At the commencement of the hearing my Lord, Jackson LJ, indicated that the provisional view of the court was that it was appropriate to grant permission to appeal to both applicants but that the appeal should be adjourned with a direction that the prosecution attend at the adjourned hearing.  Both Ms Goddard QC for Ms Choudhary and Mr Laird for Mr Ahmed indicated that they wished to seek to persuade the court not just to grant leave but also to determine the appeals.  Accordingly, we heard full and detailed submissions on behalf of both applicants. 
7.	We deal first with the application of Ms Choudhary.  She was one of six Defendants who were indicted in relation to allegations of mortgage fraud.  Between the six Defendants they pleaded guilty to 21 counts covering 20 separate fraudulent mortgage applications relating to 12 different properties in London, Birmingham, Coventry, Hanley and Stoke on Trent.  The offences spanned the period from August 2003 until 2008.  In total, £3,136,537 was obtained through fraudulent mortgage applications.
8.	Ms Choudhary was at the centre of these offences.  All the other offenders (except Mr Ahmed) were involved in one transaction only; the prosecution did not allege that they had a wider role. The prosecution alleged and Ms Choudhary accepted that of the total sum obtained the amount advanced to her, personally, was £1,841,082.  Her offending began in 2003 and ended in 2007.  She was involved in deception and fraud in relation to 9 separate properties.  Throughout the period of her offending, Ms Choudhary was a qualified mortgage advisor.
9.	In essence, the case against her was that she provided false details in mortgage application forms.  In most of the forms completed by Ms Choudhary she claimed to be employed (on occasions providing false pay slips to support that contention) when in fact she was self-employed.  On those few occasions when the mortgage form correctly identified that Ms Choudhary was self-employed it asserted that she had an accountant; that was false.  It was accepted by Ms Goddard QC that the false representation that Ms Choudhary was employed was a crucial one. Had this representation not been made no loan would have been made since Ms Choudhary did not have a sufficient “track-record” as a self-employed person to satisfy the requirements of the lenders.
10.	Without exception the applications for mortgages made by Ms Choudhary were so as to facilitate the purchase of a dwelling house so that it could then be let.  In other words, Ms Choudhary applied for and obtained “buy to let” mortgages.  There was nothing fraudulent about this aspect of the case.  It is accepted that Ms Choudhary always intended to and did let each of the premises which she purchased to bona fide tenants.  It is also accepted that Ms Choudhary did not intend to cause the lenders any loss.  It was always her intention to maintain the mortgage repayments from the income generated by the letting of the properties.
11.	It is also worth noting that Ms Choudhary did not overstate her income in the mortgage applications.  The income which she declared was that which she earned in a self-employed capacity.
12.	We turn to the benefit fraud perpetrated by Ms Choudhary.  It involved claiming that she met the requirements for working tax credit and child tax credit.  The count on the indictment asserted that over the period 6 April 2003 to 5 April 2009 she obtained a total of £29,478.50 as a consequence of this fraud.  That was disputed by Ms Choudhary.  She maintained that the benefit obtained by her was of the order of £8,500.  When he passed sentence HH Judge Hooton clearly proceeded on the basis that Ms Choudhary obtained £29,478.50.  At the conclusion of his sentencing remarks the judge was corrected by prosecuting counsel.  He immediately indicated that the amount of benefit obtained was not important since he took the view that he should pass a concurrent sentence for this offence.  It is clear, in our judgment, that the judge considered that the mortgage fraud offences merited a term of 3 years imprisonment quite independently of the benefit fraud.
13.	As we have said Ms Choudhary was a specialist mortgage advisor throughout the period of her offending.  It is accepted by Miss Goddard QC that this was an aggravating feature of some significance.  
14.	As at the date of sentence it was predicted that the likely total loss to all the lenders as a consequence of the activities of all the offenders was about £247,000.  The likely loss as a result of Ms Choudhary’s offences alone was said to be about £155,000.  It was in relation to this aspect of Ms Choudhary’s case that we had first thought there would be merit in adjourning for the attendance of the prosecution.  Obviously the extent of any loss was a material consideration in relation to sentence.  However, the information provided by Ms Goddard QC persuaded us no adjournment was necessary.  The position now is that some of the loans have been repaid with no loss to the lenders concerned. In relation to the outstanding loans the lenders have resolved against exercising their right to seek immediate repayment or possession of the mortgaged properties.  The mortgage instalments are being paid; the lenders currently take the view that their best interests are served by receiving the mortgage instalments.  It might be the case, therefore, that there will be no loss although that cannot be predicted safely in the current circumstances.  
15.	One of the ironies of this case is that Ms Choudhary’s offending was only discovered as a consequence of her relationship with Mr Ahmed.  It was he who was first investigated by the police and it was as a consequence of the investigation of him that Ms Choudhary’s offending came to light.  At no stage did any of the lenders from which she had obtained funds make a complaint to the police.
16.	As we have said Ms Choudhary pleaded guilty on the day that her trial was due to commence.  Nonetheless HHJ Hooton sentenced on the basis that she had pleaded guilty “at the first reasonable opportunity that presented itself.”  The learned judge did not identify a starting point for sentence after a trial.  However, it must be that he had in mind either 4 years imprisonment or 4 years and 6 months depending upon how closely he adhered to the published guidance relating to discount in sentence for guilty plea.
17.	Ms Choudhary is now aged 30.   She has no previous convictions.  She married very young and gave birth to a son when she was 16; he is now a teenager.  Ms Choudhary’s husband was aggressive and violent.  As a consequence of this behaviour the marriage floundered and she was forced to leave home at still a young age and become a single mother.  Such was the violence perpetrated upon her by her husband that she changed her name and that of her child.  She was forced to work in order to support herself and her son and, obviously, it is much to her credit that she managed to forge a career within the mortgage sector.
18.	In about 2006 Ms Choudhary met Mr Ahmed.  She says that they began a relationship and at first this was fulfilling and rewarding.  At some stage Ms Choudhary and she married.  By 2007 she had become aware that Mr. Ahmed was involved in criminal activity.  We cannot help but observe, however, that Ms Choudhary had been engaging in crime for some years even before she met Mr. Ahmed.
19.	The single judge rejected the application for permission to appeal in trenchant terms.  He concluded that Ms Choudhary had involved herself in a web of fraud using her knowledge as a mortgage advisor to facilitate her conduct; the fraud was calculating and elaborate and designed to build up a portfolio of properties in order to benefit from the boom in the housing market. 
20.	During the course of her oral submissions Ms Goddard QC properly drew our attention to the recent decision of this court in R v Nicholas Yates [2011] 1 Cr. App. R. (S) 15.  In that case a sentence of 2 years and six months imprisonment for a mortgage fraud was upheld where the appellant obtained a loan of £807,500, secured on a property, by falsely inflating his income. The sentence was imposed after a late guilty plea and it was made consecutive to a sentence of 6 years and six months for unrelated drug offences. At paragraph 12 of the judgment Davis J said:-   
“12. Clearly the relevant factors will vary from case to case.  However, we would suggest that – and subject always to the Definitive Guidelines – in the case of a loan or loans obtained by fraud of this kind some of the potentially relevant features may be (in no particular order) as follows: first, whether one or several transactions are involved; second, whether the fraud is committed by a professional person or is otherwise committed in breach of trust; thirdly, the nature of the fraud will need to be considered and the means by which it is carried through. Fourthly, whether the fraud was an isolated incident or involved ongoing deception, fifthly, the amount of money sought and obtained; sixthly, the amount of actual loss, so far as it can be identified, to the lender; seventhly, whether the offender has involved others, or is involved with others, in the fraud; and eighthly, whether at the time there was an intention to repay (and, if so, the anticipated means of repayment) or whether there was an intention to repay.  There may well be other factors, and regard will of course need to be had in the usual way to matters such as a guilty plea, relevant previous convictions or lack of previous convictions, and so on.  In particular, regard must, of course, always be had to the relevant Definitive Guidelines.”
Ms Goddard accepts, of course, that this court will have such factors well in mind. 
21.	The Sentencing Guidelines Council issued a Definitive Guideline for this type of offending in October 2009. Without doubt the nature of Ms Choudhary’s offending is properly described as fraudulent from the outset, professionally planned and it was carried out over a period of years. As we have said she obtained in excess of £1.8m as a consequence of the fraud.  On that basis the appropriate range of sentence was 4 to 7 years’ imprisonment after a trial with a starting point of 5 years.  
22.	We accept without reservation that Ms Choudhary’s imprisonment has had a very significant effect both on her and her immediate family, especially her teenage son who is currently cared for by family members.  We also accept without reservation that Ms Choudhary has been a model prisoner who has done what is possible to make amends for what she did.  That is illustrated most powerfully by the fact that she has ensured that mortgage repayments have been made so that there is at least a reasonable possibility that the lenders which she deceived may suffer no loss. We take account of the difficulties which Ms Choudhary has encountered in her personal life and the fact that she appeared before the court below as a first time offender.
23.	Nonetheless, in the judgment of this court there is simply no basis for concluding that a sentence of 3 years’ imprisonment is manifestly excessive. A starting point of 4 years and six months after a trial (which was the highest starting point it could have been) was at the bottom end of the relevant range of sentence.  This was multiple fraud where very large sums of money were obtained.  The fraud was aggravated by the fact that Ms Choudhary was a mortgage advisor.   We do not think that HH Judge Hooton exaggerated when he told Ms Choudhary that this was the sort of mortgage fraud which “takes the breath away when you listen to the figures that were involved and the amount of times that it was done.”  The sentence chosen by the judge gave substantial credit to Ms Choudhary for the mitigating features which we have described.
24.	Having heard Ms Choudhary’s application in full we have reached the conclusion that our initial view that her appeal was arguable was too generous to her.  Having reflected upon this case anxiously we have reached the conclusion that the single judge was right to refuse permission to appeal.  We find ourselves in agreement with his assessment of this case.  Accordingly, we dismiss her renewed application for permission to appeal.  We stress that this change of view is not to be misunderstood as any kind of reflection upon the quality of the advocacy deployed by Ms Goddard QC.  Her submissions were well made.  But reflecting on the case in the round has convinced us that there is no realistic prospect of a successful appeal.
25.	We turn to Mr Ahmed’s application.  As we indicated at the close of oral submissions we are prepared to grant permission to appeal but we adhere to the view that the appeal should be heard at a separate hearing at which the prosecution attend.  My Lord, Jackson LJ, gave brief reasons for that conclusion which we need not now repeat.  It suffices to say that some of the grounds relied upon by Mr Laird raise issues which should be heard in the presence of the prosecution and resolved only after the prosecution has made its position clear.  We are far from saying that that these issues, if resolved in Mr Ahmed’s favour, will necessarily lead to a reduction in sentence.  We do not consider it right, however, to prevent the Applicant from developing his arguments.