Nightingale judge sets burglar free due to shortage of cells
By Court reporter | 23rd March 2021
A judge who passed a jail sentence on a burglar yesterday (March 22) quickly changed his mind and set the relieved man free when he realised there were no custody officers or cells available!
South African Sivuyile Mjali, 28, was initially told by Recorder Paul Garlick QC that he would be going to prison for 8 months and that his offence was too serious for the sentence to be suspended.
But then Recorder Garlick was told there was no provision for taking anyone into custody at the 'Nightingale' Court where he was presiding in Cirencester, Gloucestershire.
The courthouse at Cirencester has recently been taken out of mothballs to help clear the backlog of Gloucester Crown Court criminal cases that have accumulated during the pandemic.
But the building is not staffed with custody officers and does not have cells equipped to modern day standards for housing defendants who are jailed or remanded in custody.
When Recorder Garlick realised the difficulty his sentence pronouncement had caused he said he would pause for thought - and then minutes later told relieved Mjali that he would not be going straight to prison after all.
Instead, the judge passed a suspended 8 months sentence, saying that on reflection he realised he had not taken properly into account the fact that Mjali was of previous good character.
Mjali, of Mayfair Court, Observer Drive, Watford, had pleaded guilty to burgling a terrified woman's flat in Cheviot Close, Quedgeley, Gloucester on September 21st 2019 as she cowered in bed and stealing keys, a bank card, pregnancy test kit and a gold watch.
Prosecutor Ian Fenny said the woman householder had gone to bed but was woken up during the early hours of September 21, 2019 when she realised there was an intruder who was going through her belongings.
"She called the police at 3.58am and described herself to the call handler as frightened and said she was hiding from the intruder under her quilt," said the prosecutor. "She told the police she was 'paralysed by fear'.
"The first police officer to arrive at 4.10am had a police dog with her. She met the intruder in the doorway, and he rushed past the officer.
"The police officer then attempted to taser the intruder, but it failed to have any impact. The officer then unleashed the dog which chased after the man, but the scent soon went cold.
"Another police officer soon arrived at the scene and located the intruder hiding in the bushes just as the dog sniffed him out. Mjali was then arrested."
He searched and found in possession of a bank card belonging to the victim and some of her other items including a pregnancy testing kit, a receipt and a gold watch, the prosecutor said.
Steven Young, defending said: "Mjali has absolutely no recollection of the events at all. He explains that he had been out with some of his friends and had only had a couple of pints of beer.
"One of these had been a long-standing friend and he had planned to stay with him at his home address. He remembers leaving the pub in Quedgeley, but nothing else.
"He does not recall entering the victim's premises, running away from the police. He does not remember being arrested and was surprised to wake up in custody the next morning to be told what had happened.
"Defendants often give this sort of information, but on this occasion, I believe it to be true. Mjali suspects that his drink was spiked.
"He also explains that he heard nothing from his friend for a number of days after this. He rang him and told him what had happened. His friend offered no explanation and has not been in contact ever since.
"Mjali shows absolute remorse into recognising the horrible ordeal he put his victim through and recognises that he is now in a very unusual situation.
"The items taken were a little odd and the case is now of some age. Mjali accepts that he has crossed the custody threshold, but I feel it is suitable for a suspended sentence with requirements as he is a landscape architect.
"Mjali has since moved to London seeking employment. His pre-sentence report suggests that he would benefit from a punitive sentence and not a custodial term as he has no other convictions, before or since this offence."
The Recorder told Mjali: "Your victim, to use her words, was paralysed by fear while you rummaged around her property when she called the police.
"She was courageous. And when she got out of bed, she discovered that you had ransacked her lounge.
"This case crosses the custody threshold. The fact that you have no recollection of this offence is not a relevant factor. Many defendants often put this excuse forward.
"In my judgement the lowest sentence I can pass is eight months imprisonment and there are no circumstances in which will enable me to suspend the sentence."
It was at this point the judge realised there was no dock officer in the court and he then asked the clerk of the court 'What do we do?'
The court usher was sent round the corner to Cirencester Police Station to see if officers there could escort Mjali to the Gloucestershire Constabulary custody suite 22 miles away at Waterwells, Quedgeley.
Mr Fenny said: "This is one of the frailties of a Nightingale court. I know the courthouse has cells but they do not meet modern day standards."
Mr Young said: "There are no arrangements (for custodial sentences) in place.
"The police station next door does not have facilities to keep somebody in custody either."
The judge then suggested that he had a moment to 'think things through.'
After a few minutes he announced that he had re-evaluated his sentencing options.
Recorder Garlick then asked Mr Young a few additional questions before stating: "Exceptionally in this instance I have revisited my decision and I realise I have failed to take into sufficient account that Mjali has no previous convictions.
"Under those circumstances and accepting that Mjali has demonstrated that he can be trusted by appearing at court today, I have revisited the sentence."
Recorder Garlick said to Mjali: "Obviously this case crosses the custody threshold, and the appropriate sentence is eight months. As an act of mercy, I am going to suspend this sentence for two years. However, I will attach a condition that you carry out 120 hours of unpaid work.
"I feel that the shock you have probably suffered over the past few minutes over an immediate custodial sentence shows you how serious your offending is. You now know how close you came to going to prison today.
"I am satisfied that I can suspend the sentence. You have your legal representative to thank for walking free from court today.
"I am grateful to Mr Young's submission and it was refreshing to hear well-structured mitigation."
The Recorder then spoke directly to the press in court and emphasised: "I have already expressed the seriousness of this offence. And anybody reviewing this sentence that I have imposed should not in any way consider that in cases similar to this that the defendant will not go into custody.
"Mjali has escaped being imprisoned by the skin of his teeth."
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