Mukendi, R. v [2010] EWCA Crim 280

Case No 200905913 A2[2010] EWCA Crim 280
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 16th February 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOORE-BICK
MR JUSTICE SILBER
MR JUSTICE KENNETH PARKER
Between
R E G I N ACrownv
Between
GUY MUKENDI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss S Morris appeared for AppellantJ U D G M E N T
[1]MR JUSTICE KENNETH PARKER: On 1st September 2009, at the Crown Court at Inner London, the appellant pleaded guilty to theft, and on 6th October 2009 before His Honour Judge Burn was sentenced to a suspended sentence order, comprising 30 weeks' imprisonment suspended for 18 months with requirements of supervision for 18 months and mental health treatment. He appeals against sentence with the leave of the single judge.[2]The facts are as follows. On 3rd July 2009 the complainant, who worked at a Job Centre Plus, misplaced his car keys and, thinking he had left them in his car, went to the car park. He discovered that his car was missing. CCTV footage showed the appellant getting into the car with the keys and driving off about two hours beforehand. On 4th July police officers attended at the appellant's address and found the stolen car parked outside his home. He was arrested. When interviewed, he said he had merely borrowed the car.[3]The appellant is a 24 year old man with five previous convictions. First, in 2003 he was made subject to a hospital order for an offence of using a false instrument. In 2005, for failing to surrender to bail, he was fined £50. Also in 2005 he received a conditional discharge for an offence contrary to section 4 of the Public Order Act 1986. In 2008 he was in prison for four weeks for an offence of common assault. Finally, in August 2008 he received a second hospital order for a second offence contrary to section 4 of the Public Order Act.[4]A psychiatric report dated 24th September 2009 from Dr Kamal Gupta was obtained. In that report, Dr Gupta says in his conclusions:
"In considering whether a restriction order (section 41 of the Mental Health Act 1983) is necessary, I have considered the requirement to protect the public from serious harm and have taken into account the nature of the offences, the antecedents and the historical risk of violence and offending. I also note Guy Mukendi's risk assessment remains incomplete given his reluctance to engage in the assessment. Taking account of the available information I am of the view that he does not pose a serious risk of serious harm to the public and for that reason do not recommend a restriction order."
[5]In the pre-sentence report dated 5th October 2009 there was a recommendation of a suspended sentence order with requirements of supervision and mental health treatment. The appellant had refused to co-operate with the preparation of the report and accordingly it was difficult to assess the risk of him re-offending, but based on his record the risk was assessed as medium. He did not accept that he had committed the offence, but did say he had been to the job centre on the day in question, had seen the car keys on the table and had taken them so that he could drive himself home as he was tired.[6]At the time of sentencing the appellant had been on remand for three months, a period that would be equivalent to a sentence of six months' imprisonment. One difficulty in this case is that the defendant pleaded guilty to theft of a motor vehicle where the circumstances of the offence did suggest that he might not have had the intention to deprive permanently the owner of the vehicle. However, putting that aspect aside, it appears to us that a sentence of significantly longer than six months' imprisonment for this offence, having regard to the sentencing guideline definitive guidance on theft at pages 11 and 15, to the circumstances of the offence and to the mental health of this offender, could not be justified.[7]The learned judge was aware of the fact that the appellant had been on remand for some time, but he does not appear to have taken that fact into account when passing the suspended sentence. It is well established that where an offender has spent time in custody before being sentenced to a suspended sentence, the sentencer should allow in the term of the sentence for the fact that time spent in custody prior to the imposition of the sentence will not count towards the sentence if it is subsequently activated: see Thomas Current Sentencing Practice Volume 1 at A11-5C, citing R v Williams [1989] 11 Cr App R 152 and R v Tucker [1992] Cr App R (S) 15.[8]In this case if the sentence were activated the appellant would receive an additional 30 week sentence and would serve a further 15 weeks in custody. In our view, such further period of custody would not be justifiable in the circumstances of this case. There is no issue that a community order of 18 months duration could properly have been made in this case with a mental health requirement of the same period. The suspended sentence is therefore quashed and a community order of that length with the mental health requirement is substituted.