In court

Professional and persistent burglar

Aged in his early 40s, H. burgled a family home in the daytime while the occupants were out, making an untidy search and removing valuables, including a safe that had been secured to the ground and its contents, stealing money, jewellery and other items of financial and sentimental value totalling around £15,000. Of 15 previous convictions for 22 offences, incurred between 1988 and 2016, residential burglary had featured in 2005, 2006, 2012 and 2016. He had first attracted a mandatory custodial sentence (requiring a statutory minimum term under PCC(S)A 2000 s111) for such offending in 2012, and when he came to be sentenced for the current crime he was serving a second such sentence (expressed as a term of 876 days) for domestic burglary committed two months after that offence. Several of his burglary convictions, including his current offence, had involved the homes of persons of Chinese or Indian extraction, but he was not dealt with on the basis that he had targeted victims because of their ethnicity but on the basis that he believed such homes would contain more valuable property, readily stolen and sold on. He had thus evidenced a degree of professionalism and planning and ‘a resolute refusal to be deterred by prison sentences’.

The Crown Court had concluded that this offence should be identified as a Category 1 dwelling-house burglary within the relevant sentencing guideline (2011), given greater harm due to the trauma occasioned (as described in the victim personal statement which referred to the impact on a child aged five within the family) and increased culpability because the judge inferred that the crime had been committed by a ‘team’ that had come adequately equipped enough to be able to remove a safe. The fact that the premises had not been occupied at time of break-in was considered a further mark of the perpetrators’ professionalism. Accordingly, the judge said that H. should receive ‘a professional’s sentence’.

On H.’s appeal against sentence of six years’ imprisonment the Court of Appeal affirmed that this had been properly treated as a Category 1 offence and the judge had been entitled to conclude that the removal of the safe had required tools and that the offence was committed by a group and not by H. on his own. The starting point under the guideline had thus been three years with a range between two to six years (albeit that s111 required a minimum of three years). His previous convictions had already been considered to a degree in that these provided the basis for the finding of planning or targeting on this occasion, thus taking the offence into Category 1:

However, that is not their only relevance and it is not double-counting to give effect to the same factor twice when it has a double significance. The previous convictions not only mean that [H.] planned this offence with care. They also mean that he has been offending in the same way for years and has not been deterred by sentences of the level previously imposed.

R v HARRISON, [2017] 2 Cr App R(S) 37.

Assault by glassing: Suspension of sentence?

In the course of a family party to commemorate the 20th anniversary of the death of T.’s father he drank heavily with his brothers and got into an argument with one brother, eventually striking him in the face with a heavy whisky glass, and also punching him. The glass broke, causing facial lacerations requiring several stitches, fortunately without causing permanent significant scarring. Though T. was initially prosecuted for s18 wounding, on day of trial the prosecution accepted his guilty plea to a s20 offence.

Determining that there were elements of greater harm, given a serious assault using a glass as a weapon, not limited to a single blow though not sustained or resulting in serious injury, combined with high culpability, albeit in the absence of premeditation, the Crown Court judge assessed the crime to fall within Category 2 of the relevant Sentencing Guideline (2011), thus indicating a starting point is 18 months with a range up to three years. In view of the identified factors she selected a starting point of 20 months before identifying further aggravating factors (T.’s intoxication and the location of the offence in the family home), balanced against significant person mitigation – including genuine remorse and the absence of previous convictions. A ‘very positive’ PSR indicated that T.’s behaviour had been entirely out of character. He was assessed to pose a low risk of re-conviction and harm, and it was reported that his family, who depended on the shop business which he ran, would be affected significantly by an immediate custodial sentence because the business might well fail and they would suffer.

On T.’s appeal against sentence of 12 months immediate imprisonment it was argued on his behalf that it had been wrong in principle for the sentence not to be suspended. The Court of Appeal had regard to the Definitive Guideline for the Imposition of Community and Custodial Sentences (2016). This identifies (in Table 1) three factors which indicate that it would not be appropriate to suspend a sentence (offender presents a risk/danger to the public; appropriate punishment can only be achieved by immediate custody; history of poor compliance with court orders), and three factors (Table 2) which indicate that it may be appropriate to suspend a custodial sentence (realistic prospect of rehabilitation; strong personal mitigation; immediate custody will result in significant harmful impact upon others). In this instance the court noted that the only Table 1 factor that was arguably present was that the ‘appropriate punishment can only be achieved by immediate custody’. The judge had regarded an offence of glassing to the face using a heavy glass which broke as an offence which required immediate custody. That being so, the Table 2 factors (all of which were present) gave rise to judicial discretion. The guideline does not say that where one or all of those Table 2 factors apply a sentence must or should or will normally be suspended, simply that it may be.

Essentially, the question was whether the impact of a prison sentence on T.’s family would be so severe that sentence should be suspended. The Appeal Court will only interfere with a decision of that kind where it is plainly wrong in principle or results in a sentence which is manifestly excessive. That was not the case in this instance and the appeal was dismissed.

R v THARMARATNAM, [2017] 2 Cr App R(S) 36.

Fraud by menace: Victim vulnerability

Having arranged via a ‘swingers’ website on the internet to meet up for a sexual encounter with what he had understood would be a man and a woman, the victim became suspicious that he had been set up when two men, C. and W., arrived by car at the meeting point, and so he drove away. They followed him for some distance, prompting him to seek police assistance, thus causing them to drive off. The following day C. and W. traced him via the internet to his place of work where they confronted him, claiming falsely that he had been seeking a sexual encounter with a young male, and demanded £5,000 to keep quiet. He withdrew that sum under duress and paid them, later reporting this to the police.

Both defendants were initially charged with blackmail but the prosecution subsequently agreed a charge of fraud (a substitution later deemed not to be relevant for the purposes of determining sentence). Both aged in their mid-20s and with previous convictions, C. and W. opted to plead guilty on the day fixed for trial. PSRs noted that neither showed victim empathy, claiming that the offence was somewhat self-inflicted because the victim had attempted to arrange sex with a male teenager and that they had wanted to teach him a lesson. The reports proposed either a community order or a suspended sentence order.

On the defendants’ appeal against three years imprisonment the Court of Appeal began by observing that the issue at stake was whether or not the judge had been entitled to sentence this offence as an offence within Category 3 of the Sentencing Council’s Fraud guideline (2014). The offence showed high culpability because of its sophistication, making it a Culpability A case. As for harm, this should be assessed in two ways: by the actual or intended loss caused (here £5,000), and by ‘victim impact’. As regards the latter the offence had been committed in two stages. The first, which reinforced the menace implicit in the second stage, was the way in which C. and W. approached and boxed in the victim’s car late at night and then, when he drove away, gave chase in such a way that he only felt safe, and they only desisted, when he found a police car. The second stage involved a threat to reveal untrue information about him. The fact that the information was untrue did not reduce its impact on the victim and in some ways made it worse. ‘Once a person’s standing and reputation are damaged that damage is often irreparable, even if the allegations are untrue. Proving that they are untrue can be very difficult if not impossible.’ The judge had been entitled to conclude on the facts that the victim was particularly vulnerable to their demand, though he had been in error to count that factor twice, under both ‘harm’ and ‘culpability’. The appropriate term was one of 18 months. This had to be adjusted upwards to reflect their bad records and then reduced by 10% to reflect their late guilty pleas. Terms of 21 months were substituted, C. incurring one month consecutive for driving whilst disqualified.

R v CHURCHILL, [2017] 2 Cr App R(S) 34.

Relationship violence: Respecting victim’s autonomy

On his release after serving a term of imprisonment imposed in part for inflicting ABH assault on his female partner J. by whom he had a daughter aged three, H. was seen with her at a bus station where he was observed to be shouting at her and slapping her repeatedly. In anticipation of H.’s release J. had obtained a short-duration county court non-molestation order for her protection. That order was in force at the time of the new assault, though it lapsed soon afterwards because she did not seek to renew it. When a member of staff sought to intervene H. confronted him, asking ‘Do you want some as well?’ and pushing him in the chest with both hands, causing him to stumble backwards. J. apologized to the staff member, saying: ‘He does this all the time’. She also spoke to another witness, saying: ‘You didn’t see anything. He didn’t hit me’. Aged in his late 30s and described as ‘a violent and unruly man’, H. had 36 convictions for 97 offences dating back to 1995 including for assault, arson and weapon possession, plus numerous instances of non-compliance with court orders of various kinds.

When H. was prosecuted for the two new assaults the Crown Court judge received an email from the probation service stating:

[H.] is due in court tomorrow. It is my assessment that no community sentence would be workable as [he] shows no willingness to work with probation. One of the offences of assault is against the same victim of his index offence. He is assessed as very high risk to her and even more so as it is believed that they want to be together. There is no non-molestation order in place any more as she got rid of it. He is high risk to staff, public and children. Therefore a custodial sentence would aid in protecting all these groups. He has also just started to work with mental health in custody which may reduce his risk if he continued to do so. If he was to be released he would have no fixed abode and the risk of re-offending would be serious and imminent. Could a restraining order be considered?

The judge drew this message to the attention of the prosecution and defence, raising the question whether a restraining order should be made. The prosecution said that usually that had to be instigated by the complainant but J. had refused to make a statement and was indeed in court supporting H. The judge nevertheless made the order, stating that as H. was considered to be ‘a high risk to Probation Staff, to the public and children’, he was in no doubt that a restraining order should be imposed (under the Protection from Harassment Act 1997 s5), being for three years and prohibiting H. from contacting J., directly or indirectly, ‘save and except through the intervention of the probation service’. At the same time H. was sentenced to 12 months immediate imprisonment.

On H.’s appeal against the restraining order the Court of Appeal had regard to earlier appeal judgments on the point, including Brown (2012) in which the Court had stated:

This young woman wishes to continue in a relationship with a man who has been repeatedly violent to her. That is a decision that she is entitled to make, however dispiriting it may be. There is no suggestion that she lacks capacity, or that she has been forced to do this, or that she is in fear of the applicant. She genuinely wishes to pursue her relationship. In those circumstances the restraining order should not have been imposed.

In light of that authority the Appeal Court determined that it was not ‘a jurisdiction which can be used to prevent an adult from deciding who she wants to live with’, even though it was obvious that J. was at serious risk of violence from H. ‘She has the right to live with him if she chooses. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make.’ Because of concern for her safety, the Court had asked the police to contact her so that her wishes could be ascertained and she had told them unambiguously that she wanted the restraining order revoked. Though undoubtedly made with the best of intentions and firmly based on a well-founded fear of harm in its absence, the restraining order had to be quashed.

As regards the risk H. posed to the child of the relationship the Court had considered whether the order should remain in force because of the risk to her but concluded that ‘compelling the parents of a child to live apart and not to communicate with each other for her protection is a decision which the criminal court is not well equipped to take’.

A determination of the level of the risk to her and of the steps which are required to protect her from that risk and to promote her best interests requires a carefully calibrated decision of a court equipped to receive evidence from social workers with expertise in such matters and also to hear the evidence of the parents. The appropriate forum for the necessary protective steps for the safety of the child is the family court. If the social services are concerned about the risk to the child presented by her father, as they plainly seem to be, then the appropriate course for them to take is to take proceedings in the family court while he remains in prison.

R v HERRINGTON, [2017] 2 Cr App R(S) 38.

One-off knife attack

When a member of security staff at a city centre bar to which W. was seeking to enter approached him, W. responded for no clear reason by pushing the victim in the chest. When the victim tried to detain W. he ran away and, when pursued, he turned and deliberately stabbed the victim in the side of his chest with such force that he imbedded the 10 cm blade in his rib cage, snapping it from the handle. The victim sustained a punctured lung and required a three hour operation. He had been left unable to resume his main occupation as a scaffolder, had no wish to return to door security work and had been diagnosed with PTSD. Aged 21 at the date of the offence, W. had no previous convictions, though he had incurred three unrelated cautions. The PSR noted the recent death of his father. W. pleaded guilty at a relatively late stage to s18 wounding with intent. In passing sentence the judge identified the crime as a Category 1 offence within the relevant Sentencing Guideline, a weapon having been used to cause very serious injury, the appropriate starting point being 12 years’ imprisonment. Going out that evening armed with the knife and using it in the city centre with considerable force were considered distinct aggravating features.

On W.’s appeal against sentence of 10 years’ imprisonment (with three months concurrent for common assault), it was argued on his behalf that insufficient weight had been given to the mitigating factors, particularly W.’s age and good character and that he had struck only one blow. Dismissing the appeal the Court of Appeal indicated that the judge had been wholly correct in considering that taking a knife out in public was a serious further aggravating factor and then using it in a busy city centre against someone trying to maintain order aggravated the offence further. ‘People using knives in such circumstances sadly remain a far too common occurrence in city and town centres and those who go out armed with knives and use them must understand that they will receive long sentences.’ The sentence had been ‘wholly appropriate’.

R v WARREN, [2017] 2 Cr App R(S) 45.

Violence in ‘complex situations’: Priority for rehabilitation?

Aged in his early 50s, H. had been staying with D. for six months as he was homeless and D. was willing to help him out. In the course of an argument between them because D. considered that H. was overstaying his welcome, H. threw a stool at D., injuring his head, and then punched him twice in the head. Seeing blood pouring down D.’s face, H. realized what he had done, ceased the attack and started to panic, offering to clean up the blood, but D. had been so scared that H. would attack him again that he grabbed his house keys and fled, seeking help from a neighbour. The wound required eight staples but a CT scan demonstrated no ‘acute intracranial pathology’. H. had three previous but historic convictions (between 1978 and 1982), only one being relevant, an ABH assault in 1978 when he was 15, attracting a supervision order. These were disregarded by the sentencing judge.

On the date of H.’s trial for s18 wounding D. did not attend court to give evidence and the prosecution accepted a guilty plea to s20 wounding. A stand down PSR reported that H. had not intended to hit D. on the head with the stool but merely to shut him up and that he did not consider himself to have issues with anger. He was assessed to pose a medium risk of causing physical violence when faced with ‘complex situations’. The probation officer considered him suitable for community disposal, either a suspended sentence or a community order for 12 months, with requirement to undertake unpaid work and 15 days’ rehabilitation activity involving ‘work on complex situations and thinking skills’.

The Crown Court judge noted that the assault had been repeated but not sustained, being over quickly, thus placing the offence on the borderline between greater and lesser harm. However, there was higher culpability because H. had used a stool as a weapon. Under the relevant Sentencing Guideline (2011) it fell somewhere around the border between a Category 2 offence (starting point of 18 months’ custody with a range between one to three years) custody and a Category 1 offence (starting point of three years’ custody with a range between 30 months and 48 months). The offence was aggravated by being committed in the victim’s own home, albeit shared with the perpetrator. The judge interpreted the sentencing guidelines to direct sentencers to consider whether the custody threshold had been crossed and whether sentence could be suspended only in cases involving a Category 3 offence, not Category 1 or 2 offences.

On H.’s appeal against sentence of 15 months’ imprisonment the Court of Appeal considered this a Category 2 offence, because the head wound had not been particularly serious. However, the judge had been correct to treat the repeat assault and the use of the stool as a weapon as indicative of higher culpability. Accordingly, the length of the sentence could not be faulted. The only question at stake was whether the judge had erred in principle in not suspending the sentence. She had not interpreted the guideline correctly, in that there may be exceptional Category 2 cases where the sentence is less than two years, thus enabling the sentence to consider the possibility of suspending the sentence, having regard to the Definitive Guideline on the Imposition of Custodial and Community Sentences, effective from 1 February 2017. The probation officer’s assessment of risk and recommendation suggested that there was a realistic prospect of rehabilitation. As regards other mitigating factors, H. had been out of trouble for 35 years and had not previously received a custodial sentence, and this was taken under consideration together with his evident remorse. However, ‘this level of violent offending merits an immediate custodial sentence and there is nothing about this case which would exceptionally have justified suspending the sentence’. The appeal was dismissed.

R v HEGGARTY, [2017] 2 Cr App R(S) 48.

Personality disordered patient: Credible threat to kill

While under the care of a consultant psychiatrist with a diagnosis of dissocial personality disorder, ADHD and social phobia disorder, W. had sent a series of threatening messages to the sister of one of his friends, R., apparently triggered by a £30 debt owed to him by R.’s girlfriend. He followed this up by calling at R.’s address, shouting threats and kicking the front door, filming himself doing this and later posting the images on Snapchat. Within three weeks W. attended an emergency walk-in clinic and told a doctor that he had killed various animals since the age of 13, was considering burning down the block of flats where he lived and that he was having thoughts about killing the doctor. On referral back to his consultant he told the consultant that he had been feeling increasingly agitated over the last two months and had spent several hours a day surfing the internet learning about serial killers and weapons. He described having fantasies of harming people, including random people in the street, his father and a tramp and said he was planning to kill a former friend. He claimed that four days before he had paid an acquaintance to drive him to that friend’s house in order to kill that person and then set his house on fire. He said that his acquaintance had refused to drive him any further when he found out what W. intended to do. (It was later established that the house in question was not where R. lived, nor was there any independent evidence to substantiate this claim.)

The consultant was satisfied that W. was expressing an absolutely clear intention to kill his father or his former friend, rather than expressing a mere fantasy. In the light of W.’s history of violence, the nature of his personality and the threats he had made, he concluded that the offender was dangerous, posing a high risk that the threats would be carried out, and informed the police. In consequence W. was prosecuted for making a threat to kill, also being charged with an offence under the Communications Act 2003 in respect of the earlier messages, no charge resulting from his visit to his friend’s address.

Now aged 22, W.’s previous convictions included arson at age 15, racially aggravated harassment at 16, and three separate offences of battery at 17. In 2014 he had incurred two years’ YOI detention for assault with intent to rob (threatening the victim with a knife and a glass, plus punching and kicking him) and later that year he received a three-month consecutive sentence for common assault and causing unnecessary suffering to an animal (throwing a puppy against a wall, killing it).

On reference by the Attorney-General on the basis that the Crown Court’s sentence of 15 months for the threat to kill, following jury trial, with one month consecutive for the Communications Act offence, had been unduly lenient, the Court of Appeal noted firstly the absence of sentencing guidelines for the principal offence and further that the threat to kill was uttered to a person who was not the target of the threat, that the prosecution had not been able to say with certainty that R. was the target of threats uttered to the consultant and that R., when informed of the threat by the police, had declined to make a statement relating to any impact upon him. The indictment had referred to making threats in relation to ‘an unknown person’. There was nothing to show that the object of the threat, whoever that was, was put in any fear for their personal safety. Moreover, there was a gap in time between the claimed car trip and the uttering of the threats to the consultant, which might suggest a lesser likelihood that W. intended to carry out his threat. Nevertheless, the Attorney General argued that the threat made had clearly been taken seriously by a responsible professional who genuinely feared for the safety of the person at whom the threat was directed. Further, this was not a threat made on the spur of the moment or under the influence of drink. W. had a history of violent offences which was relevant to the reality of the threat and the likelihood of it being carried out. However, W. had no convictions under CJA 2003 so that a sentence of at least four years would have to be imposed before an extended sentence could be considered. As the Attorney General was not contending that an uplift in sentence to four years or more would be appropriate on the facts of this case, it followed that W. would not qualify for an extended sentence under the dangerous offender provisions.

Recognizing that the possible target of the threats appeared not to have been unduly concerned, the Court nevertheless observed that the offence was committed by someone who was at liberty to carry out his threat and his case was aggravated by his disturbingly violent criminal record. He appeared to have contemplated the threat over a period of time and made enquiries or investigations over the internet. The malicious communication offence and its follow-up had shown that W.’s animosity had taken concrete form in the relatively recent past. The threats were taken very seriously by an experienced professional. There was a significant degree of premeditation prior to the making of the threats which were uttered with apparent deliberation. The judge should have passed a significantly longer sentence than 15 months and the Court substituted a term of 30 months’ imprisonment.

ATTORNEY GENERAL’s REFERENCE (R v WATTS), [2017] 2 Cr App R(S) 52.

Prison stabbing: Refusal to engage with mental health services

While a serving prisoner at HMP Peterborough following revocation of her licence in respect of a six month term imposed for several assaults and an s20 wounding, A. removed a plastic eating knife from the dining area and, after initially returning to her cell, she approached the first person that she came across, a woman prisoner with whom she had had no previous issues, slashing the knife across her neck, albeit causing only reddening of the skin. A. did not say anything, walking calmly back to her cell and waiting for staff to arrive. In interview she made immediate admissions, saying that it was a ‘non-event’ and giggling inappropriately at times. She had five previous convictions for 20 offences between April 2014 and June 2016. She had incurred her first custodial sentence in November 2015, namely 16 weeks’ YOI detention for battery. Whilst serving that term she had been referred to the Inreach Mental Health Team because of concerns about her mental health as she was complaining about both auditory and visual hallucinations. She subsequently gave a history which included drug abuse from a young age and past hallucinations, but those treating her concluded that she was most likely to be suffering from a conduct disorder. Medication was prescribed, offering significant improvement. On release she had committed the further offences that had resulted in her more recent incarceration.

When prosecuted for possession of an offensive weapon inside a prison (contrary to the Prison Act 1952 s40CA(1)), A. refused to speak to the probation service or a psychiatrist to enable preparation of reports. She subsequently appealed against sentence of 28 months’ imprisonment for the weapon offence following guilty pleas, no separate penalty being imposed for the assault. The judge had identified a starting point of 42 months’ custody, deducting a third as full credit for plea, having described the crime as an unprovoked attack using a knife, calculated to frighten not just the victim but others too, launched at a very vulnerable part of the body, doubtless because A. had intended to make a point.

Noting that the offence had been clearly planned and that A. had ‘a very troubling’ record for offences of violence, a substantial aggravating factor, the Court of Appeal observed that her refusal to comply with either a PSR or a psychiatric report meant that the sentence could not rely on any mitigation which such reports might have revealed. The judge had been entitled to take the view that the protection of the public was the most important purpose of sentence in her case. Given the location of the offence, he could also have added the need for deterrence. Those considerations took priority over the relevance of A.’s relatively youthful age and the need to ensure proportionality, given that the weapon was plastic. Though the sentence had been undoubtedly severe, right at the very top of the appropriate range, it had not been manifestly excessive and her appeal was dismissed.

R v ALDERSON, [2017] 2 Cr App R(S) 53.

Fraud stooge: Vulnerability to manipulation

Further to phone calls to a bank (not made by O.) purporting to be made on behalf of a company with an account at that bank and instructing a sum of £20,000 to be paid to its representative, O. attended the bank bringing his own passport and a fraudulent letter purporting to be authorization from the company for the money to be handed to him. Bank staff were alert to this scam and O. was arrested. Prosecuted for fraud by false representation he pleaded not guilty, claiming that he had been duped by those in control of the fraud and that he had believed the letter of authority to be genuine. By now aged 23, he had one previous conviction, for dwelling house burglary, attracting a community order in 2014. He had breached that order by failing to work as required, thus incurring additional hours of unpaid work, and had committed this fraud about six weeks after his breach hearing.

A clinical psychologist acting as a defence witness at trial had stated that though there was no indication that O was particularly suggestible or compliant in general, he was keen to prove himself as intelligent and good at business, which might have made him a target of exploitation in this instance. A PSR recounted that O. supported his widowed mother, who suffered from depression, and was working full time in a casino while undertaking a business studies course. The judge was invited to consider a suspended sentence order with appropriate conditions. In imposing seven months’ immediate imprisonment the judge had regard to the Sentencing Council’s Definitive Guideline for Fraud Offences (2014) and determined that the case fell between category A4 (starting point of 18 months with a range of 26 weeks to three years) and category B5 (starting point of a community order with a range of a fine to 26 weeks’ custody).

On appeal against sentence the Court of Appeal noted in respect of culpability that the actions of those behind the scenes had displayed elements of planning and sophistication but O.’s behaviour had not. ‘Acting at the behest of others, he attended at the bank in possession of his own identity document’. He had doubtless been persuaded by more sophisticated offenders and his role could not be considered high. As regards harm (loss), the sentence had been wrong to refer to ‘risk of loss’ in applying the guideline (as opposed to ‘intended loss’), the former term applying to ‘possible future or consequential loss’ and not relevant in this offence. The loss intended here (£20,000) placed the offence at the top end of Category 4. O. had been subject to a community order at the time, a significant aggravating feature. However, a reduction should have been applied to reflect O.’s intellectual limitations and vulnerability to being taken advantage of by others. Adopting a starting point of 26 weeks, the Court determined that the appropriate term was one of four months immediate imprisonment.

R v OPUKU, [2017] 2 Cr App R(S) 49.

Insidious grooming pressure but no ‘contact’ abuse

Encouraged by the victim’s cousin to contact her, A. did so by Facebook, her profile describing her as aged 19. She was actually a 15-year-old in foster-care and as she had been targeted previously for online grooming her foster-parents had sought to limit and monitor her use of social media. However, she circumvented their controls via a friend’s mobile phone. Over a period of three weeks they exchanged frequent phone and text contacts, A. becoming aware of her true age at an early stage. They professed to love each other. His messages quickly became sexual in nature, though the girl suggested that they postpone sex until she was 16. A. agreed but nevertheless asked her for oral sex and sent him pictures of his penis and of him masturbating. Though she later said she had found that disgusting she maintained contact, though she did not comply with his requests for pictures of herself naked. He told her that he would kill himself if she stopped speaking to him. On one occasion he told her that he was in hospital, sending her a photo of a bleeding wrist, telling her that this was what he had done previously when a girl he really liked had rejected him and blocked him. Her foster-parents and her birth mother intervened on becoming aware of her link with A. His messages were found to have incited her to allow him penetrative sex with her and a threesome with his male friend. He also sent her photos with ‘connotations of a long-term relationship, including nice cars’. With a single ‘minor blemish’ at age 12, he was treated as of previous good character.

Following A.’s guilty pleas to offences of inciting a child to engage in sexual activity, the Crown Court considered a PSR which reported that he did not accept that his behaviour was sexually motivated and that he appeared to have no female friendships outside the family, which might have had a bearing on his behaviour. The author of the report considered that his conduct had amounted to grooming. The report confirmed that he had expressed genuine remorse for his behaviour and suggested that there was a degree of naivety on his part in relation to how serious it was. Because he was under 21, he was not eligible for the Sex Offender Treatment Programme, but the PSR recommended a community order with requirements of structured one-to-one supervision to address his offending behaviour, coupled with an unpaid work requirement. The judge considered that A.’s actions constituted Category 1A offending under the Sentencing Council guideline (2016, specifying a starting point of five years’ custody and a range of 4–10 years), combining Category 1 harm (because the sexual activity incited involved penetration of the vagina and mouth) and Level A culpability, because A. had used grooming behaviour, causing the victim to believe that he cared for her and that there would be some kind of ‘other than sexual’ future in the relationship. The judge considered that A.’s conduct was aggravated beyond Level A culpability because of his threats of suicide and his attempts to involve another male, including the suggestion that a picture of the complainant naked would be passed on to his friend.

On A.’s appeal against sentence of 40 months’ YOI detention it was argued on his behalf that the judge had been wrong to find that this offending fell within Category 1A, whereas it was more accurately within Category 1B because the communications had not amounted to ‘grooming’. Further, even if it was properly placed in Category 1A, a substantially lower sentence was justified on the facts, given A.’s young age, immaturity and genuine remorse (for example, he had voluntarily stopped all use of social media during the 11 months between his arrest and sentence, to remove any risk of similar behaviour). The judge should have adopted the recommendation in the PSR as an alternative to custody.

The Court of Appeal was satisfied that the judge had been entitled to conclude that A.’s conduct plainly counted as grooming behaviour within the meaning of the guideline. He had applied ‘insidious, persistent emotional pressure’, to cause this young, impressionable and vulnerable girl to co-operate with his sexual wishes. The offending was, therefore, correctly placed in Category 1A. However, the Court noted that the same guideline applies both to offences of inciting a child to engage in sexual activity (SOA 2003 s10) and actual sexual activity with a child (SOA 2003 s9). It was relevant to sentence that A. and the victim had never met, so that there was never any physical sexual activity between them. Taking account also of the substantial mitigating factors the case merited a significant reduction from the starting point. ‘For one so young and immature, the impact of a substantial custodial sentence was bound to be greater.’ Accordingly, a term of 30 months’ detention was substituted.

R v AHMED, [2017] 2 Cr App R(S) 44.

Lavatory menace: Applying proportionality

When a girl aged nine who had been playing in a park went to the toilets next to the children’s play area, N. followed her inside and tried to film her with his mobile phone by standing on the seat of the adjoining cubicle. When she saw him and shouted at him to stop he forced his way into her cubicle where she briefly saw his exposed penis before he covered himself. He detained her, forcing her back onto the toilet seat when she tried to escape, repeatedly demanding that she remove her trousers and also searching her bag and purse. Though he had threatened that if she refused or shouted for help he would hit her, she called out when she heard a woman entering the toilet, prompting N. to punch her around her eye with such force that it made her fall off the toilet seat, causing bruising, and to slap her across the ear, causing reddening and swelling, and then hit her over the head. When the woman realized what was happening she summoned help, N. pushing past her so that she fell to the ground and running off, being later arrested through DNA evidence found on the girl’s clothing. He was frank in admitting responsibility.

Aged 26 at the time of this crime, N. had a record of offending from age 13 that included a conviction for indecent assault on a female aged 16 or over at age 17 and voyeurism for which he had incurred a suspended prison sentence and a SOPO, imposed six months beforehand. He had placed a mobile camera device among the ceiling tiles in the women’s lavatories at a supermarket. The SOPO included prohibitions against entering a women’s lavatory and using a device capable of recording images. He was thus in breach of both orders.

A psychiatric report for the Crown Court indicated that N. had mild learning disability and ADHD, the latter being markedly improved since his childhood, and alcohol dependence syndrome. The risk of repetition of similar offences was assessed as high. In passing sentence the judge observed that the victim had been targeted because of her vulnerability and had sustained injury; N. had admitted that he had intended to commit a sexual assault on her by digital penetration. These were considered very worrying offences set against a background of a troubling history of offending.

On N.’s appeal against a 20-year extended sentence (combining 12 years’ custody with eight years’ licence), imposed for committing an offence (false imprisonment) with intent to commit a sexual offence (with shorter concurrent terms for voyeurism, ABH assault, common assault and breach of SOPO, plus activation of the suspended term of nine months), following guilty pleas, the Court of Appeal observed that the judge had been entirely right that a very lengthy prison sentence was justified and to impose an extended sentence. However, a starting point of 18 years before credit for plea had been manifestly excessive. ‘This was not a completed or attempted rape; the detention of the child did not last for an extended period as it was in a public place and although the violence used was gratuitous and frightening it caused no serious physical injury. This was not the worst case in this category of offending.’ A custodial term of 10 years was substituted. Though the extended licence period had been set at the maximum period under the legislation this had not been wrong in principle or manifestly excessive and was left intact.

R v NEWTON, [2017] 2 Cr App R(S) 41.

IPP review: ‘Balancing exercise’ failure

A tariff-expired IPP prisoner serving sentence for wounding with intent and located at HMP Grendon, Mr G. was reviewed by a panel of the Parole Board conducting an oral hearing in November 2016. Reports to the board included a Therapeutic Community Report which indicated that he had addressed various risk factors related to anti-social attitudes, coping and problem-solving, relationship skills and emotional management, and concluded that he was now ready for open conditions. A forensic psychologist’s report agreed with that assessment. In similar vein a report by his community probation officer was clear in considering him ready for progression to open conditions, thus providing ‘the opportunity to consolidate his learning in a less secure environment’ and to have ‘a controlled reintegration back into the community’. He sought judicial review of the Board’s decision neither to direct his release nor to recommend open conditions.

The administrative court noted that that a recommendation for a move to open conditions should be based on a balanced assessment of risk and benefits, the Secretary of State’s Directions to the Board (2015) specifying the main factors to be taken into account. In this instance the panel’s post-hearing letter explaining their decision started by referring to the required balancing exercise but then concentrated exclusively on the risk associated with release. ‘They were clearly focused on whether or not to release the claimant and paid scant attention to the different exercise of assessing suitability for transfer to open conditions.’ Accordingly, the board’s decision was quashed and a further and expeditious review was ordered. Though the Ministry of Justice tandem decision that G.’s next hearing should take place in 18 months fell away, the court determined that an 18 month time interlude had been unreasonable and not compliant with ECHR Article 5(4).

R (on the application of GREEN) v PAROLE BOARD and SECRETRY of STATE for JUSTICE, October 2017.