R v Ali Samadi Rasul

The appellant, now aged 23, was committed by the Magistrates' Court for sentence on two counts of possessing an article for use in fraud, contrary to section 6 of the Fraud Act 2006 and two further counts of adapting an article for use in fraud contrary to section 7 of that Act , to which he had pleaded guilty at the earliest opportunity. On 14 November 2025, in the Crown Court at Exeter, HHJ Evans sentenced him to a total of 2 years' immediate custody, comprising 2 years on count 4 and shorter concurrent sentences of 21 months on count 3, (which was the other section 7 count) and 15 months on each of the section 6 counts. He appeals against sentence by leave of the Single Judge.

The Court was informed that there is an error in the Crown Court record, which erroneously noted the sentence of 2 years against count 3 and the sentence of 21 months against count 4. That error needs to be corrected, and we are grateful to Mr Robinson, who appears today for the appellant, for bringing that matter to our attention.

All the offences concerned attempts by the appellant (then aged 21) at different times and on different occasions and in different locations to cheat in his driving theory test. On the first occasion, in July 2024 in Newport Theory Test Centre, staff using a loop device heard voices in the headphones the appellant was using, which were giving him the answers to the questions. On that occasion they were unable to find the device that he was using to receive the answers. He was removed from the test and left the centre. A warning letter was sent to him by the DVLA but it proved to be no deterrent.

Some 6 months later, on 8 January 2025, he attended Birmingham Test Centre. Staff, again using a loop device, could hear interference in the headphones he was using, which was an indication that a device was being used to cheat. When approached, the appellant removed the headphones and took a Bluetooth earpiece out which he handed to the staff. He also removed a phone concealed in his trousers that had not been detected when he entered the test centre. The appellant was removed from the test and left the centre.

On 6 February 2025, a known impersonator, who had attempted multiple tests all over the country, attended Yeovil theory test centre in possession of the appellant's provisional driving licence, and identified himself as the appellant. Staff at the test centre did not believe him and refused him entry, reporting the matter as a fraud.

On 19 February 2025 the same impersonator attended the Cardiff Theory Test Centre, again in possession of the appellant's provisional licence, and again identified himself as the appellant. On that occasion he was not detected. He passed the identification checks, sat the test and achieved a pass which was credited to the appellant. However, this result was revoked when CCTV footage from the Cardiff centre was obtained and clearly showed that it was the impersonator and not the appellant who sat the test.

The appellant was invited to attend an interview, but when he attended he required an interpreter to understand the questions. Interpreters are not provided to assist candidates to understand the questions asked during the theory test. In police interview the appellant denied that he had cheated on the first two occasions. He said that on the second occasion he had forgotten that he had a Bluetooth earpiece in his ear but that he had not used it to cheat. As regards the subsequent two frauds, he claimed that he had lost his provisional licence and he did not know how the impersonator had got hold of it. When shown the CCTV footage of the Yeovil and Cardiff incidents he accepted that the person on the footage was not him. He said that he had never seen the impersonator before. He had applied for and obtained a new provisional licence. It was established that this had been issued to him 6 days after the incident in Cardiff.

The appellant was of previous good character. A pre-sentence report was obtained which identified immaturity as a factor in his offending. He explained to the probation officer that he had previously failed the driving theory test seven times and was eager to obtain a full driving licence. He worked part-time as a barber, and the salon was some distance from his home. The lack of transport limited his ability to commit to early starts and longer shifts. He also believed that a full driving licence would help him in his endeavours to bring his partner to the UK so that they could marry and start a family. He was aware that what he was doing was dishonest but appeared not to realise just how serious the offending was. He claimed that he did not receive the DVLA warning letter and said that if he had been formally notified he would not have continued offending.

When asked about the impersonator, he said he had responded to an advertisement on social media by a company offering assistance with passing the theory test. He had provided it with his provisional licence and was told he would only be charged if successful. He had not paid and had not been chased or threatened for the money. He now regretted engaging with the service. He expressed genuine remorse and acknowledged the importance of road safety and the need to obtain a licence through legitimate means. Since the offences he had studied independently, and he passed the theory test on 7 August 2025. He had failed the practical test once but was working closely with a driving instructor to pass it next time.

The probation officer assessed the appellant as being of low risk of further general offending and as posing a low risk of serious harm, provided that he did not decide to drive a vehicle without a valid licence. Whilst he acknowledged the offences passed the custody threshold, the probation officer had assessed the appellant as suitable to carry out unpaid work. The appellant had recently moved closer to the salon at which he worked and was due to start a full-time job there in December 2025. Custody might put his work and accommodation in jeopardy. The report also referred to the stress that the proceedings had caused the appellant and the fact that he would find his first experience in custody challenging.

In sentencing the appellant, the judge remarked that this sort of offending was not necessarily within the full contemplation of the Sentencing Council when they put together the sentencing guideline for section 6 and section 7 offending. He took as the lead offence count 4 (the second section 7 offence) which he characterised as being of medium culpability because the appellant supplied his provisional licence to someone he knew was part of an organised criminal operation willing to impersonate for money. The harm was greater harm, the judge said, because the appellant successfully obtained a test pass in his name through fraud, and the offence was of a kind that significantly undermines the nation's safe licensing system. He adjusted the starting point of 2½ years' imprisonment upwards to reflect the fact that this was in truth a sustained course of fraudulent conduct.

At the hearing before the judge, both the prosecution and the defence made a great deal of the case of R v Mbangi [2013] EWCA Crim 1419 , which predated the introduction of the guidelines. Although it formed a central part of the appellant's appeal at one stage, before us Mr Robinson very sensibly conceded that once the Sentencing Council had imposed Definitive Guidelines, cases of that nature were no longer authoritative or guideline cases. Mr Robinson also accepted in answer to questions from the Court that it was not particularly helpful to draw comparators between the facts of cases of that nature and the instant case for which the judge was sentencing.

However, having been drawn into that comparative exercise, the judge explained why he considered the offending in this case to be more serious than in the case of Mbangi . In Mbangi there were two unsuccessful attempts by a friend of the offender to take the test for him. The attempts were unsophisticated and there was virtually no planning. In this case there were four attempts culminating in the successful obtaining of a test pass and the applicant was actively involved by attending the test centre himself on two occasions with the Bluetooth device being used to feed him the answers, which the judge described as a plan of a certain level of sophistication. The later attempts involved his agreeing to pay professional fraudsters which put this on a very different level from making a request to a friend.

The judge decided that all the aggravating factors he identified justified an increase from the starting point by 12 months to reflect the overall criminality of the offending, before making a downward adjustment of 6 months for all the mitigation he identified. That produced a notional sentence after trial of 3 years' imprisonment which was reduced to 2 years for the guilty plea. The judge then considered the Guideline on the Imposition of Community and Custodial Sentences. He accepted that there was a realistic prospect of rehabilitation and that the appellant would not present a significant risk of re-offending or causing harm to other motorists in the future. There was nothing to suggest that he would not comply with court orders in the future and because English is not the appellant's first language, his first experience of custody may be harsher than it would for others. However, in view of the need for deterrence, offending of this kind was so serious that only an immediate custodial sentence would do. The judge said that unpaid work alone or even in combination with other community requirements under a suspended sentence order would not achieve the right level of punishment.

On behalf of the appellant, Mr Robinson originally put forward four grounds of appeal. The first involved an attempt to draw a comparison with Mbangi which, as we have said, Mr Robinson conceded this morning was not an appropriate course to have taken. Secondly, it was originally contended that because the offences under section 6 carried lower maximum terms and sentencing ranges than the section 7 offences, the aggravating features relating to the former should not have been applied to the more significant section 7 offending. Again, very sensibly this morning before us Mr Robinson abandoned that particular ground on the basis that he accepted, as he was constrained to do, that in determining what sentence to pass on the lead offence, which was count 4, the judge was entitled to consider the overall criminality of the offending and to reflect the features of that offending in the sentence which he passed.

Thirdly, it was contended that there was a form of double counting because the judge took into account the policy point that driving theory cheats put at risk the public and undermine the driving licensing process, both at the stage of determining the appropriate length of sentence and again when deciding whether to suspend that sentence. Again, it was very properly conceded that that point was misconceived. This is not a situation in which the same aggravating factor was used to determine the offence category and then used again to elevate the sentence within that category. The judge was entitled to treat the harm that offending of this nature causes as being sufficiently serious to characterise these offences as “greater harm” offences when determining what the appropriate term should be, but that was no bar to his relying on the need for deterrence when deciding only a sentence of immediate custody would serve to punish for offending of this seriousness.

However, Mr Robinson sought the leave of the Court to modify his grounds to argue that this was not an appropriate case to have been placed in the greater harm category. As he pointed out, none of the features which the judge identified in his sentencing remarks as putting the case into greater harm was identified by the Sentencing Council, save possibly the use of third party identities. But Mr Robinson submitted that a third party identity case of the kind contemplated by the Sentencing Council was the typical fraud in which somebody adopts the personality of a person who has no knowledge of that matter and pretends to be them in order to obtain goods or services, which can have a very deleterious effect on the victim's credit record and other matters. Mr Robinson argued that the Sentencing Council plainly did not have in mind the harm that is caused when two people put their heads together to commit a fraud of this nature which involves one person (in this case, the appellant) entrusting his documents to the other person so that the other person can impersonate him. In those cases he submitted the social harm caused by identity fraud is not present.

As to the judge's point about the serious nature of the offending and the fact that these kinds of offences have a profound effect on the safety of the driving test system and other road users, Mr Robinson submitted that this was not something that the judge was properly entitled to take into account, in the absence of empirical evidence of that effect. In any event, he submitted by analogy with the offence of driving a motor vehicle without a licence, it was not something that could be indicative of greater harm because Parliament has decreed that the maximum sentence for an offence of that nature is one of only 6 months' custody.

Mr Robinson also submitted that the judge had given insufficient credit for the appellant's mitigation, and in particular it was not clear from his sentencing remarks that the judge had properly factored in the two matters to which he specifically referred when determining not to suspend the custodial sentence, namely the strong prospect of rehabilitation and the difficulties which the appellant would experience in custody, when he explained what the notional sentence after trial would be.

The Single Judge when giving leave to appeal had indicated that the Court hearing the appeal would be assisted by hearing what the Crown had to say about the guidelines. Mr Morgan-Jones who attended the hearing very helpfully addressed the court in relation to the question of greater harm and the points that Mr Robinson had made about it. He drew our attention to the fact that in the introduction to the Sentencing Guidelines for these kinds of offences it is made clear that the harm is assessed by reference to an inchoate offence and not a situation where the offence is completed. He also made the point that the question of harm in offending of this nature does not sit easily within the guidelines which are of general applicability and can cover a very wide range of factual scenarios. Whilst at first blush the specific factors referred to as putting a case into category of greater harm would not apply to these types of offending, nevertheless a judge faced with sentencing for this kind of offending would have to do their best to consider the nature of the harm caused, and to decide on which side of the line it would fall.

This judge had clearly identified why he thought there was greater harm. He was entitled, submitted Mr Morgan-Jones, to take into account the fact that there was a deliberate use of a false identity which at least by analogy with the use of third party identity could be a factor which pushed the matter into greater harm. Mr Morgan-Jones pointed out that there is a difference between a situation in which a sentencing judge wishes to rely on the prevalence of a certain type of offending to gauge its seriousness, in which case it is well established that there needs to be specific evidence before the judge can do so, and questions of seriousness by reference to the impact on the community at large, where such evidence is not mandatory.

In our judgment, those points were well made. The judge was entitled to regard this as a case of greater harm for the reasons that he gave. Although Mbangi is not in any way relevant, it is helpful to the extent that, when assessing culpability, a distinction is plainly to be drawn between a defendant who is himself or herself a professional criminal, and an unsophisticated individual such as this appellant. However, in this case there was no reason to quarrel with the judge's assessment that this was a culpability B case. The judge was plainly entitled to consider the wider social impact of offending of this nature in assessing its seriousness and in deciding that it was a greater harm case for the reasons that he gave.

Therefore, he cannot be criticised for taking the starting point in the guideline of 2½ years before considering the aggravating and mitigating factors relating to this particular offending. Nor can he be criticised for taking count 4 as the lead offence, given that on that occasion the imposter was not immediately detected and the test result was initially attributed to the appellant. The judge was plainly entitled to reflect the overall criminality of the appellant's behaviour in the lead sentence and pass shorter concurrent determinate sentences on the other counts to reflect totality. That inevitably meant departing upwards from the starting point for a single section 7 offence and treating the other offences as aggravating features.

In considering and evaluating the overall criminality the judge was obviously entitled to consider the particular features of the section 6 offences. On each occasion the appellant had taken devices into the test centre, and concealed them to avoid detection, and those were the means by which somebody outside the test centre was able to feed him the answers to the questions. The fact that three offences were committed after the warning letter was sent was a further aggravating factor. The judge had read the pre-sentence report in which the appellant denied receiving that warning letter and plainly did not think much of that explanation, irrespective of whether it was positively advanced in mitigation. Another sentencing court may well have considered that a combination of persistent offending of this nature using different test centres in different parts of the country would have warranted moving upwards from the starting point by more than 12 months.

That said, the appellant was only 21 years old when he committed these offences. He was plainly very immature, was barely out of his teens, he was of previous good character and, in all other respects, appeared to be a model citizen.

"In view of the implications for the safety of road users, one can indeed identify the need for deterrent sentencing here."

However, we do consider that there is force in the submission that in reaching a sentence of 3 years before discounting for the guilty plea, insufficient credit was given for the substantial personal mitigation and, in particular, for the appellant's youth and immaturity and the probation officer's assessment that he was unlikely to commit any further offences of any kind. He was accepted to be genuinely remorseful and he had taken active steps to obtain his driving licence by orthodox means. This would be his first experience in custody and there were good reasons to suppose that he would find that experience more difficult than others.

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