Imthiar Khan [2019] EWCA Crim 1752
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**R v Imthiar Khan [2019] EWCA Crim 1752** concerned an appeal against sentence by the Court of Appeal in which Mr Justice Soole, sitting with Lord Justice Flaux and Mrs Justice Whipple, reduced the overall sentence imposed for three offences from 14 months to 9 months’ imprisonment.
Mr Khan had been sentenced at Snaresbrook Crown Court on 12 July 2019 to 9 months’ imprisonment for fraud contrary to section 1 of the Fraud Act 2006, 4 weeks consecutive for failure to surrender to bail contrary to section 6 of the Bail Act 1976, and 4 months consecutive for possession of a bladed article contrary to section 139 of the Criminal Justice Act 1988, producing a total of 13 months and 4 weeks described by the judge as 14 months. The appellant was 31 years old.
The fraud offence was committed on 7 July 2018 when Mr Khan entered a Metrobank in Hemel Hempstead and sought to open a bank account in the name of another person. He produced a genuine driving licence in that person’s name and claimed to be a managing director of a company. Staff became suspicious that the photograph on the licence was not of the appellant and called the police. Mr Khan remained in the bank. Upon arrest he admitted in interview that he wanted to open the account to obtain money by overdraft to pay for his drug habit. He said he had found the driving licence on the street and had obtained information about the company. He indicated on the Better Case Management Form at the Magistrates’ Court that he was likely to plead guilty and the matter was sent to the Crown Court at Luton. He was bailed to attend the plea and trial preparation hearing on 17 June 2019 but failed to attend. A bench warrant was issued and he was brought before the Crown Court on 4 July 2019, when he admitted the breach of bail, pleaded guilty to the fraud offence, and was remanded in custody.
On 15 January 2019, whilst on bail for the fraud offence, Mr Khan had been stopped and searched for unconnected reasons and was found in possession of a lock-knife. On interview he said it was not his but he had found it three or four days earlier and intended to take it to an amnesty bin. The following day he pleaded guilty at Thames Magistrates’ Court to the section 139 offence and was committed for sentence. All three matters were listed for sentence together at Snaresbrook Crown Court on 12 July 2019. Mr Khan’s previous convictions included burglary, affray, common assault, criminal damage, theft, breach of a community order, and two offences in 2015 and 2017 of failure to surrender to bail.
The sentencing judge placed the fraud offence within high culpability category A of the sentencing guideline on the basis that Mr Khan had obtained the driving licence of another person with the intent of deceiving the bank and that this constituted significant planning. With harm category A5 (intended loss less than £5,000) and harm B lesser impact, this gave a starting point of 36 weeks’ custody and a category range from a high level community order to 1 year’s custody. The judge imposed 9 months’ imprisonment without indicating the extent of credit for plea. As to the bail offence, the judge concluded it fell within culpability A as a deliberate attempt to evade or delay justice and harm category 1 as the failure to attend Crown Court resulted in substantial delay and interference with the administration of justice, giving a starting point of 6 weeks and range of 28 days to 26 weeks. The judge imposed 4 weeks consecutive. As to the knife offence, the judge evidently rejected the defence submission that culpability was category D (possession falling just short of reasonable excuse) and after credit for plea at the first opportunity imposed 4 months consecutive. The judge expressly took account of totality.
On appeal, Ms Csengeri submitted on behalf of Mr Khan that the fraud offence had been wrongly placed in culpability category A and should have been in category C, alternatively B. The offence was neither sophisticated nor the product of significant planning and had little or no prospect of success. Even if it could be characterised as significantly planned, it was necessary to blend that feature with the characteristics of lesser culpability, namely the one-off nature of the offence. As to harm, there was no more than the risk of category 5 financial harm and therefore it was necessary to move down the range within the category. Full credit should have been given in light of the indication on the Better Case Management Form. As to the bail offence, the circumstances of the explanation for failure to surrender meant the offence should not have been treated as culpability A or harm category 1. Mr Khan had been sleeping rough in East London without funds to travel to court and had a chaotic lifestyle as a homeless individual and drug addict. He had not intended disrespect to the court nor to evade justice. Two weeks’ delay did not constitute substantial delay or interference with the administration of justice. As to the knife, the blade was broken and approximately 1 cm long. On the appellant’s account, the reason for possession fell just short of reasonable excuse and this factor should have been balanced against the culpability A factor of possession of a bladed article. He had no previous convictions for weapons offences. Insufficient account was taken of totality. Ms Csengeri also relied on personal mitigation including the absence of any previous term of imprisonment, problems with drug addiction and depression, fundraising work for charities, and progress whilst in prison.
The Court of Appeal held that the fraud offence had been placed in the wrong category with the consequence that the sentence was manifestly excessive. The court rejected the submission that culpability fell within category C but concluded that the prosecution had been right to place it in category B. This was neither a sophisticated offence nor did it involve significant planning and the prospects of success were evidently very limited. As to harm A, there was an intended loss within category 5 but the court did not accept it should be placed lower down the category range on the basis that there was simply a risk of category 5 harm. Combined category B5 provided a starting point of a medium level community order and a range from a Band B fine to 26 weeks’ custody. The court concluded that in all the circumstances, including previous convictions for offences of dishonesty and with full weight to mitigating factors, the custody threshold was crossed. The appropriate sentence before credit for plea was 5 months. The court rejected the submission that the indication on the Better Case Management Form justified full credit. For the reasons given in R v Davis [2019] EWCA Crim 553, [2019] 2 Cr App R(S) 33, the statement that a plea was “likely” was not an indication of a plea of guilty. A reduction of 20 per cent was appropriate, producing a sentence of 4 months’ imprisonment.
As to the bail offence, the court rejected the submission that this was a case where the reason for failure to surrender was just short of reasonable excuse. However the offence was categorised, the critical feature was the two previous offences of failing to surrender which constituted a serious aggravating factor justifying the sentence imposed. After full credit for plea, 4 weeks’ imprisonment was entirely appropriate. As to the knife offence, the court rejected the submission that the explanation given by Mr Khan brought the offence within the category of possession falling just short of reasonable excuse. The judge had rightly placed the offence within category 2A. Giving full weight to mitigating factors and full credit for plea, 4 months’ imprisonment was entirely appropriate.
The court held there was every reason for the sentences for these distinct offences to be consecutive. For greater ease of calculation, the court varied the sentence for the bail offence from 4 weeks to 1 month, producing an appropriate overall total of 9 months for the overall offending. In short, the appeal was allowed to the extent that the sentence for fraud was reduced from 9 months to 4 months and the sentence for the bail offence was varied from 4 weeks to 1 month, resulting in a total sentence of 9 months’ imprisonment.