Ibrahim Khan [2019] EWCA Crim 1202

Ibrahim Khan [2019] EWCA Crim 1202 concerned an appeal against sentence for dangerous driving and related motoring offences in which the Court of Appeal (Lord Justice Simon, Mr Justice Lavender and His Honour Judge Edmunds QC) allowed the appeal in part on grounds of totality.

On 1 February 2019 in the Crown Court at Reading Mr Khan was sentenced to a total of 14 months’ immediate detention following committal for sentence after guilty pleas before the magistrates. He received 4 months’ detention for having false registration plates, with no separate penalty for having no driving licence, no insurance and failing to stop when required by a constable. A consecutive sentence of 10 months was imposed for dangerous driving. He was also disqualified for 19 months and required to pass an extended driving test. He appealed against sentence by leave of the single judge limited to ground 2, which argued that the total sentence did not adequately take account of the principle of totality.

The facts were that Mr Khan had purchased an Audi A3 for £300. He was suspicious it was stolen, though it was not. It bore false plates which he said he did not himself fit. He had never applied for a driving licence and had no insurance. On 4 May 2018 at about 8.00 pm police officers in Slough saw the Audi in Bath Road. Mr Khan was driving with two passengers. Police wished to stop the car because it had been identified earlier that day as bearing false plates. The Audi was stopped at a red traffic light in lane 2 of a two-lane dual carriageway. Police illuminated blue lights and blocked the vehicle by pulling in front of it between the Audi and another car driven by a member of the public. Two officers got out and approached, telling Mr Khan to stay there. The car driven by the member of the public moved off. Mr Khan then drove forward into the gap and towards PC Gilbert, plainly intent on escaping. PC Gilbert struck the passenger window with his baton but the Audi continued moving forward so that PC Gilbert had to push himself off the vehicle to avoid being struck. The Audi drove off pursued by the police car and drove through red traffic lights at speed in a pursuit lasting between 30 and 60 seconds before it stopped and the occupants unsuccessfully sought to make off on foot. In interview Mr Khan said of PC Gilbert that he ran at him and he was trying to find space to drive off, so the officer got hit or only got touched. Asked why he failed to stop, he said he panicked because he had no licence. When told he could have hurt the officer he replied that he knew but wanted to get away and should not have done so.

In sentencing the learned judge commented on the decision to drive with false plates, no insurance and no licence, saying that whatever his reasons for so driving it was not lawful. The judge found that although the dangerous driving was short-lived there was a real risk of harm to the police officer and he drove in that way deliberately to avoid lawful apprehension. Mr Khan was 20 and had been convicted on six previous occasions for 10 offences, including robbery, actual bodily harm, battery, possessing a bladed article, attempted robbery and assaulting a police constable. However that last conviction was in 2015. All those offences were committed as a juvenile and he had received rehabilitative sentences. His response to supervision had been satisfactory but barely so. The judge found he had not taken the opportunity of those rehabilitative sentences to address his lifestyle given how he was living and with whom he was associating in May 2018. The judge took account of his circumstances and a character reference from Selma Choudhury detailing voluntary work. She concluded that the combination of offences was so serious that only immediate custody would suffice. Notwithstanding what she called the litany of previous violent offences this would be his first sentence of detention. The judge said that for dangerous driving the appropriate sentence after trial would have been 15 months, reduced to 10 months for credit for plea, and for false plates 6 months reduced to 4, to be served consecutively. Whilst the judge passed no separate penalty on the other motoring offences she did not make any reference to totality.

On behalf of Mr Khan, Ms Bellamy argued that the total sentence did not adequately take account of the principle of totality. Mr Khan was still just 20 at the time of the offence and at sentence. Although he had past offences, the last on his record was committed on 9 July 2015, some two and three-quarter years before these offences. Even allowing for his having been out of the country for some of the intervening time that was a considerable gap, particularly for a young man. He had not previously received custody.

The court understood why the judge considered that immediate custody was required and that the sentences should be consecutive. A person detected in crime who sought to make off and in so doing endangered a police officer seeking to detain him could not complain if a judge concluded that consecutive sentences were required, even if some might choose not to impose them. However, in imposing any custodial sentence the court was required to determine the shortest sentence commensurate with the combination of offences. Where consecutive sentences were appropriate the totality guideline required the court to consider if the aggregate was just and proportionate and, if not, to take steps either by reducing the individual sentences to achieve proportionality or in appropriate cases imposing no separate penalty for some. Whilst the judge did impose no separate penalty on some offences, the court concluded that the total of the custodial sentences passed was not just and proportionate.

To address that issue the sentence for dangerous driving was reduced to 8 months and that for false plates to 2 months, making a total of 10 months’ detention. The disqualification and requirement to pass an extended driving test remained. The appropriate period of disqualification remained 12 months but the extended period required by section 35A of the Road Traffic Offenders Act 1988 was reduced to 4 months. The upward adjustment to take account of the sentence for false plates under section 35B was reduced to 1 month. The total period of disqualification calculated from the date of sentence was therefore 17 months. In short, the appeal was allowed to the extent that the total custodial term was reduced from 14 months to 10 months on the basis that the original total was disproportionate.