Kensit [2018] EWCA Crim 2672

Richard Brian Kensit v Regina [2017] EWCA Crim 2672 concerned an appeal against sentence by a defendant convicted of dangerous driving and related offences, in which the Court of Appeal (Lord Thomas of Cwmgiedd LCJ, Carr and Gilbart JJ) reduced both the custodial term and the period of disqualification.

Mr Kensit was convicted after trial of dangerous driving contrary to section 2 of the Road Traffic Act 1988, and later pleaded guilty to failing to surrender to bail contrary to section 6 of the Bail Act 1976. On 18 October 2016, His Honour Judge Kaul QC sentenced him to twelve months’ imprisonment for dangerous driving with a three-year driving disqualification and an extended re-test requirement, and six months’ imprisonment consecutive for the bail offence, making eighteen months in total.

The dangerous driving occurred on 2 November 2014 at about 4.25am, when police on patrol in Braemore, Ilford, came across two vehicles. One was empty with its doors open, engine running and lights on. The other, a Lexus occupied by four men including the appellant, was driven by Mr Kensit. When police flashed their headlights to indicate he should stop, Mr Kensit reversed, turned, and drove the Lexus at speed towards the police car in what appeared to be an attempt to ram it. The police reversed to avoid collision. The Lexus mounted the pavement, squeezed through a gap and made off. Officers pursued the appellant who turned into a single carriageway residential road with speed humps, driving at 60mph in a 30mph limit. He failed to slow down at a junction when turning onto a main road. Police temporarily lost sight of the vehicle, which by then had lost its front-seat passenger, but found it again when Mr Kensit stopped outside a hospital where he was arrested. Two other people remained in the vehicle. When cautioned, the appellant denied having been the driver.

The trial had been scheduled for 2016, but the appellant failed to attend on 27 July 2016. He had not seen his solicitors for some time. On 26 July, he informed them he had been vomiting and had a headache, having attended his general practitioner two days earlier. The judge requested a medical note and adjourned to the following day, issuing a bench warrant not backed for bail. Shortly after 2pm, the court was told the appellant’s symptoms had worsened and he was being taken to hospital by ambulance. It also emerged he was wanted for breach of probation requirements and potential recall to prison.

On 28 July before Judge Kaul QC, the appellant again did not attend. The case was adjourned to later that day. The officer in the case went to the appellant’s mother’s address and was told he was not there and had not been home for three days. She said he was anxious and depressed but made no mention of hospital or an ambulance. On 29 July, the appellant again failed to attend and the judge ruled the trial would proceed in his absence. The prosecution case was heard, with adjournment to 1 August to allow Mr Kensit to give evidence if he attended. He did not attend on 1 August. Counsel informed the court he had been contacted the day before, told the trial would proceed and that he could attend to give evidence. He was convicted in his absence, and a bench warrant and recall to prison were issued. A sick note requested in July was later produced, referring to depression; a subsequent note said he had been diagnosed with depression, but there was no reference to physical sickness correlating with the explanation advanced in July.

On 15 August, Mr Kensit was arrested in Bournemouth for an unrelated matter. On 16 August, he denied the Bail Act offence, and the matter was adjourned to 25 August for trial. On that date, he dismissed his counsel. On 18 October, now represented by Miss Grewal, he accepted the offence of failing to surrender to bail.

Mr Kensit was aged 38 at sentence. He had 19 convictions for 37 offences spanning 1995 to 2011. Twenty offences involved driving or motor vehicles, and he had previous convictions for driving whilst disqualified. He had a previous conviction for failing to surrender in 2007, for which he received 28 days’ imprisonment. Since the dangerous driving offence in late 2014, he had been sentenced to suspended sentences for theft from motor vehicle and handling in January 2015, a community order for assault, and in July 2015 to three months’ imprisonment suspended for fifteen months with a programme requirement for theft from motor vehicle. On 16 February 2016, during the operational period of that suspended sentence, he was sentenced to ten months’ imprisonment for possessing a prohibited weapon; no separate penalty was imposed for breaching the suspended sentence. The court had no information as to whether offences committed after the dangerous driving had been committed on bail. There was no pre-sentence report.

In passing sentence, the judge noted the appellant’s history of driving offences and said he had been given chance after chance before receiving ten months’ imprisonment in 2016, for which he had been recalled during the present proceedings. The judge said he had shown no maturity or co-operation with the Probation Service. Regarding the bail offence, the judge said the appellant had flagrantly wasted court time, caused unnecessary delay and appearances, and instructed two firms of solicitors; a consecutive term was appropriate.

Miss Grewal advanced three grounds of appeal: insufficient credit for the specific circumstances of the dangerous driving; insufficient credit for the guilty plea to the Bail Act offence and that a consecutive sentence was inappropriate, or totality was excessive; and that the disqualification period was excessive, noting the appellant wished to work as an electrician and plumber upon release.

Dealing first with the dangerous driving, the court noted it was a short piece of very dangerous driving. Happily no one was injured and no other vehicles damaged. However, there were two substantially aggravating factors: the evidence that the Lexus had been driven at speed towards the police vehicle as if to ram it, and the appellant’s terrible record of criminal convictions, particularly for driving offences. The court was satisfied that only custody was appropriate. Although twelve months’ imprisonment was substantial, the court did not consider it excessive in the circumstances.

The court held that a consecutive sentence was inevitable for the Bail Act offence. Turning to its length, the court referred to the Definitive Guideline. For a first-time offender, deliberate failure to attend causing delay and/or interference with the administration of justice had a starting point of fourteen days with a range from medium community order to forty weeks. However, the guideline listed four additional aggravating factors: lengthy absence, serious attempts to evade justice, determined attempt to undermine the course of justice, and previous relevant convictions and/or repeated breach. Paragraph E4 provided that cases at or near the bottom of the range would be where the defendant gave no thought to consequences or there were mitigating factors and delay was not significant, whereas at or near the top would be cases where any aggravating factor was present with significant delay and/or interference.

The court found that the delays actually caused by Mr Kensit’s failure to surrender ran from 27 July to mid-August 2016; later delays were due to his maintaining his not guilty plea. The dangerous driving trial had taken place in his absence, and it was right to note the judge had gone to great lengths to ensure fairness and allow Mr Kensit to attend. The court agreed the appellant sought to avoid appearing in court, but held that a consecutive term of six months was excessive. The appropriate sentence was a consecutive term of three months’ imprisonment.

Finally, the court addressed the disqualification. This was patently a case requiring disqualification given Mr Kensit’s disregard for driving law, and not for the first time. The court also had to consider extensions required by section 35A of the Road Traffic Offences Act 1988. The court accepted Miss Grewal’s point that some allowance must be made so the appellant had a chance of pursuing his occupation on release, but there must be a disqualification period extending beyond his release date of May 2017. Accordingly, the court imposed a discretionary period of twelve months’ disqualification for dangerous driving, a six-month extension under section 35A(4)(h) for the disqualified driving, and a three-month uplift for the Bail Act offence, totalling twenty-one months’ disqualification.

In short, the appeal was allowed: the consecutive sentence for failing to surrender was reduced from six to three months’ imprisonment (making fifteen months in total) and the driving disqualification was reduced from three years to twenty-one months.

Regina v Richard Brian Kensit [2017] EWCA Crim 2672