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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bukhari, R v [2018] EWCA Crim 916 (13 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/916.html Cite as: [2018] EWCA Crim 916

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 13 April 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

MRS JUSTICE MAY:

1. On 20 February 2017, in the Crown Court at Croydon, the appellant pleaded guilty to three offences: false imprisonment, making a threat to kill and common assault. On 24 May 2017 he was sentenced to 32 months for the offence of false imprisonment with concurrent sentences of 18 months and 4 months respectively for the offences of threats to kill and common assault. The total sentence, after discount for his pleas at the first opportunity, was thus 32 months. He appeals that sentence with leave of the Single Judge.
2. The facts of the offences are that on 19 August 2016 the defendant and six of his construction workers attended at the office of Top Move estate agents on South End in Croydon. There they confronted the owner of the agency, who was in the office alone, and demanded repayment of £3,500 paid as a deposit for accommodation which had not eventuated.
3. The first part of what happened is captured on CCTV. However, some 5 minutes into the confrontation one of the workers is seen to reach up and disable the camera. Before that the cameras captured the men surrounding the complainant in the front of the office, the appellant is seen knocking the mobile phone out of his hand and saying: "Where is the fucking money before I start cutting your throat". The complainant reaches for the land line phone but that too is knocked out of his hand.
4. The appellant continued to be aggressive until at one point he can be seen grabbing the complainant before dragging him, assisted by some of the others, into the back office. It is at that point that the cameras are disabled.
5. The complainant said that in the back office he was punched with full force several times to the head. The appellant told him that they were going to cut his throat and he heard someone opening and closing kitchen drawers presumably looking for a knife. One of the males came back into the room with a crowbar which was then used to threaten the complainant. The appellant told him: "Try anything and I will kill you". The complainant said that he had also been threatened with castration. The whole incident lasted for about 30 minutes and was stopped when the police arrived. Someone outside on the street had seen what was taking place through the glass windows and had called the police. When they arrived they found the complainant pinned up against the back wall surrounded by the men. He was very shaken but unhurt. The appellant and all the men with him were arrested.
6. In interview the appellant said that it was he that had been first assaulted by the complainant. However, he accepted that he and the workers with him had stood in the complainant's way to stop him leaving the office but only because they thought that he would run away and the appellant wanted his money back.
7. Of the men arrested with the appellant no further proceedings were taken in respect of one man who appeared to take no part. The rest were all jointly charged with the appellant but he alone of them all attended the hearing. The others failed to do so in breach of bail; the bench warrants that were issued remain outstanding.
8. In sentencing, the learned judge said, rightly, that this must have been an utterly terrifying experience for the complainant. The CCTV confirms how very menacing being surrounded by six large and aggressive building workers must have been, particularly when those same men seized the complainant and hustled him into the back room. When accompanied by threats to kill these actions must have been very worrying indeed. Inherent in the offence of threats to kill is the intention (on the part of the person making the threat) that it should be believed.
9. The judge made it clear that he took into account what he described as "highly frustrating situation in which the appellant found himself". This was a reference to events leading up to this incident. The appellant was the owner of a building concern and had just secured a lucrative contract in the neighbourhood. He had approached Top Move to organise rental accommodation close by for his workforce for the duration of the contract. He had been shown suitable accommodation, had paid a sizable deposit for it (£3,500) and was awaiting receipt of the keys. However, there had been a certain amount of prevarication on the part of his contact at the agency over the fortnight prior to 19 August. On 18 August he was told that the landlord of the accommodation had decided after all not to let it to them and that he would not be getting the keys. Since his workers had by then left their previous accommodation expecting to move he was concerned and frustrated as no doubt were they. When he asked for the deposit back it was not immediately forthcoming. At the same time the appellant was anxious for his staff, who were by now effectively homeless. The wife of one of them was heavily pregnant with nowhere to stay. In short, he felt a heavy burden of responsibility and that he had let them down. Nevertheless, as the judge pointed out, that could not justify behaving in the way he did.
10. Amongst other matters of mitigation was the absence of any relevant previous offending history: the appellant was effectively a man of good character. There were a plethora of glowing references speaking of him as a hard-working, family man, for whom this behaviour was totally out of character. He was very remorseful and had offered to pay compensation. His doctor had provided a letter confirming that he suffered from depression.
11. Miss Young, who appears for the appellant on this appeal, contends that all these and other matters of mitigation were either not taken fully into account by the judge or were not sufficiently reflected in the sentence which was passed.
12. We are quite satisfied, taking everything into consideration, that the learned judge had all material matters of mitigation well in mind. He made that plain when he said that the sentence he was going to impose was considerably less than he would have passed before hearing of the mitigation. His was evidently a carefully considered approach.
13. The single question for us therefore is whether, given the extensive mitigation available to the appellant, adequate allowance was made for it when arriving at the notional sentence before discount for plea for this set of offences. We are quite satisfied that a lengthy custodial sentence was justified notwithstanding the mitigation. There is no Definitive Sentencing Guideline for the offence of false imprisonment, which can take a wide variety of differing forms. We have heard regard to the matters set out by Treacy LJ, giving the judgment in the case of Attorney-General's Reference No 92 of 2014 [2014] EWCA Crim 2713, at paragraph 19.
14. As to these, the complainant here was cornered by a number of large and aggressive men in his own office and manually restrained, albeit no other means of restraint were employed. Some violence was used. Fortunately he was not left with any injuries. Most seriously, there were threats including threats to castrate him and to kill him. At one stage someone wielded a crowbar. The judge accepted that the offence was not planned. However, the appellant went to the offices accompanied by a number of his workers. Although not of any great length, the period of detention was by no means momentary, only stopping when the police arrived. This may not have been as serious a case of false imprisonment as some others which this court has dealt but there were elements which made it a very nasty event indeed warranting a substantial period of immediate custody.
15. Having said this and bearing in mind all the mitigation to which our attention has been drawn, we are satisfied that the notional sentence before discount for plea, taking account of all mitigation, was too high in this particular case. We take the view that, in all the circumstances, the appropriate sentence, before discount and taking into account the mitigation, was one of 3 years. After discount this gives a sentence of 24 months. Although a sentence of this length may in some circumstances be suitable for suspension, we are satisfied, in this case, and notwithstanding the mitigation, that appropriate punishment can only be achieved by immediate custody.
16. We therefore quash the sentence of 32 months on the count of false imprisonment and substitute for it one of 24 months. All other sentences and orders remain the same.

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