Rhys Hennerby [2019] EWCA Crim 1766

Rhys Hennerby [2019] EWCA Crim 1766 concerned an appeal by Mr Rhys Hennerby against sentence before the Court of Appeal, which dismissed the appeal.

Mr Hennerby had pleaded guilty in the Magistrates’ Court to possession of a knife in a public place and receiving stolen goods, and was committed for sentence. On 4 July 2019 he was sentenced to a total of 16 months’ imprisonment, comprising eight months for having an article with a blade in a public place and eight months consecutive for receiving stolen goods.

Between 23 and 24 March 2019 the owners of a 2017 Black Kia Sportage noticed their vehicle had been stolen. On 3 June 2019 the car activated security cameras at Hythe Tesco in Colchester when driven by an uninsured driver. Police attended and found Mr Hennerby at the wheel. The vehicle bore false number plates. A black-handled kitchen knife with a nine-and-a-half inch blade was found inside the driver’s door pocket. The vehicle, valued at £14,000, had been stolen from outside the owner’s home by someone who had entered the property and taken a spare car key. The owner lost not only the vehicle but also the log book, children’s car seats and a variety of personal property, causing considerable inconvenience.

The sentencing judge noted that Mr Hennerby, aged 24, had been offending for nine years and had a depressing record for someone of his relative youth. His previous convictions included offences of violence in 2010, 2011 and 2012, and in 2014 he had received three years’ imprisonment for affray. In 2017 he had committed vehicle crime for which he was given a suspended sentence, though the judge accepted that he had largely complied with its terms. The judge observed that this was not the first time Mr Hennerby had committed vehicle crime or handling offences. The most powerful point in his favour was his early guilty plea, for which he received full credit.

The sentencing judge referred to the pre-sentence report as making depressing reading. Drugs had blighted Mr Hennerby’s life; he had progressed from cannabis to cocaine and from using to dealing. Although there was some foundation for hope in the report and in the accompanying drug rehabilitation requirement report, the judge concluded that any assistance would have to be provided by way of an immediate prison sentence rather than the suspended sentence urged by defence counsel. For the knife offence the judge treated it as Category 2A under the guideline, with a starting point of six months and a range of three months to one year, aggravated by the appellant’s previous offences of violence. Taking a starting point at the top of the range after trial and allowing credit for the guilty plea, the judge imposed eight months’ custody. For the handling offence the judge placed it towards the bottom of Category 2 given the vehicle’s value of £14,000. The starting point for Category 2 was one year with a range of 26 weeks to one year six months. The aggravating features were the previous convictions, in particular the vehicle offences in 2017. The judge arrived at 12 months before credit for the guilty plea, resulting in eight months’ custody.

The grounds of appeal were that the starting point adopted was manifestly excessive and that the judge failed to consider totality. In submissions before the Court of Appeal, counsel for Mr Hennerby accepted in effect that the individual sentences were not manifestly excessive, and the main ground advanced was that totality had not been properly taken into account by the sentencing judge. It was further submitted that the sentence should be reduced to reflect the lack of serious aggravating features beyond the appellant’s record and to take account of the positive pre-sentence report and drug rehabilitation requirement report.

Mrs Justice Moulder, giving the judgment of the court, held that the individual sentences could not be said to be manifestly excessive. For the knife offence the judge had taken culpability A and harm Category 2, arriving at a starting point at the top of the range after trial and then giving credit for the guilty plea, which was not excessive given Mr Hennerby’s record. For the handling offence the judge had placed it towards the bottom of the Category 2 range, arguably a generous approach given the additional harm resulting from the inconvenience of the theft and the items stolen. The court noted that the aggravating features included the previous convictions, particularly the affray in 2014 and the vehicle offences in 2017.

The court considered the submission that consecutive sentences were inappropriate in the circumstances. Applying the guideline on offences taken into consideration and totality, the court observed that consecutive sentences will ordinarily be appropriate where offences arise out of unrelated facts or incidents, and will also be appropriate where offences are unrelated and although committed simultaneously they are distinct and there is an aggravating element requiring separate recognition. The possession of the knife was committed on the same occasion but required separate recognition, not being of the essence or an intrinsic part of the offence of handling stolen goods. The court accepted that there was no indication in the sentencing remarks that the judge had considered whether the overall sentence imposed was just and proportionate. However, the court held that the sentence was not manifestly excessive.

The court rejected the submission that the pre-sentence report provided significant mitigation. Whilst it explained the background to Mr Hennerby’s behaviour, drugs appearing to be the root cause of his problems, the court agreed with the sentencing judge that in the circumstances any assistance had to be provided whilst in custody. Similarly, the fact that Mr Hennerby was deemed suitable for a drug rehabilitation requirement programme in the community did not provide significant mitigation. Mr Hennerby had nine previous convictions for 19 offences. Whilst some dated back to 2010 when he was a youth, he had recent convictions for both violence and vehicle crime. He had previously been given the benefit of a suspended sentence but had nevertheless reappeared before the courts. That record was a significant aggravating factor. The offence of affray in 2014 was both relevant and recent, as were the vehicle offences in 2017.

In short, the Court of Appeal held that the total sentence of 16 months reflected the gravity of the offending in all the circumstances and dismissed the appeal.