R v Ekedi Tsepho Msuya

A sentence of immediate imprisonment remains appropriate where the seriousness and danger of the offending require it, notwithstanding substantial personal mitigation and a realistic prospect of rehabilitation.

Serious physical injury and an urgent need for treatment may exceptionally justify a different course. They do not do so where the sentencing court had allowed for the condition and the prison authorities have identified the need for specialist treatment and are arranging it. Any failure to provide adequate treatment is to be addressed through the available prison and public-law remedies, rather than by suspending a sentence which remains the appropriate punishment.

The applicant pleaded guilty at Liverpool Crown Court to attempted robbery and possession of an offensive weapon. During the attempted robbery he used a lighter and de-icer to create and direct a flame at a shop worker. He received 24 months’ immediate imprisonment for attempted robbery, with four months concurrently for the weapon offence, and a ten-year restraining order.

He sought leave to appeal on the ground that the custodial term should have been suspended. After sentence, his treating orthopaedic surgeon supplied evidence that his serious leg injury required further surgery and rehabilitation, and that delay could risk amputation. The Court admitted that evidence and the prison’s response concerning arrangements for treatment. The central issue was whether the fresh medical evidence justified suspending an otherwise appropriate immediate custodial sentence.

1. The application for leave to appeal was dismissed. The sentencing judge had taken all relevant matters into account, including the applicant’s serious physical condition. The 24-month term was not wrong in principle or manifestly excessive; indeed, it was merciful for conduct which was dangerous and terrifying. The judge was entitled to conclude that the custody threshold was crossed by a substantial margin and that only immediate imprisonment could provide appropriate punishment.
2. The Court admitted the post-sentence medical evidence because it was unavailable at sentence and was relevant and important to the application. It confirmed that the applicant had a severe leg injury, needed a second operation soon, and faced a risk of amputation if treatment were not provided.
3. That evidence did not make suspension appropriate. The sentencing judge already knew that imprisonment could make treatment difficult and had reflected that circumstance in the sentence. The prison had promptly referred the applicant to an NHS specialist, sought urgent input, and stated that it would facilitate appointments, surgery and rehabilitation.
4. There can be exceptional cases in which deteriorating health or a terminal diagnosis makes a different sentencing course appropriate, as recognised in R v S & R v M [2018] EWCA Crim 318. This was not such a case. The need for treatment was serious and relatively urgent, but it was understood by the prison and could be addressed while the applicant remained in custody. If adequate treatment were not provided, the available request, complaint and public-law mechanisms could address that failure.
5. The Court directed correction of the statutory surcharge from £190 to £156, the amount applicable to offences committed on 17 May 2022.

• Court of Appeal (Criminal Division): Refused leave to appeal against sentence and dismissed the application. It admitted fresh medical evidence but held that it did not justify suspending the immediate custodial term. It corrected the statutory surcharge to £156.
• Liverpool Crown Court: On 5 October 2023, Her Honour Judge Brandon imposed 24 months’ imprisonment for attempted robbery and four months concurrently for possessing an offensive weapon, together with a ten-year restraining order.