In court

Escalating pattern of targeting shops: Deterrence necessary

Within a three-week period H., aged in his late 20 s and subject to post-custody licence, sought to steal from shops, reacting aggressively when challenged by staff. In the first instance he entered a store where he was well-known as a thief, having been caught stealing there on the previous day, He became angry and abusive and gripped a bottle of wine in a manner that suggested that he might use it as a weapon, before walking out, having already bagged boxes of detergent. Eleven days later he was seen in another supermarket stuffing steaks in his bag. When asked to replace the meat he revealed an item in his pocket that staff believed to be scissors. Thereafter video footage caught on a staff member’s phone showed him behaving in a ‘thoroughly aggressive and unpleasant way’, trying to force his way out of the store by pushing past staff before his bag was removed from him. Eight days later he was challenged at a further supermarket from which he had been banned, having been seen placing dog food in his bag. He revealed what appeared to be the handle of a knife or a screwdriver in his trouser pocket, saying ‘you know what’s going to happen if you stop me’ in an aggressive and threatening way. Fearing that H. was prepared to use violence, the member of staff had allowed him to leave and head off on his bicycle that he had left by the door for a quick getaway.

An inveterate shoplifter with an ‘appalling’ record of theft for which he had incurred numerous short sentences of imprisonment for shoplifting, H. had escalated his offending to a different level by intimidating and threatening shop staff who challenged him, so that he was now charged with attempted robbery and robbery in respect of the second and third episodes. The first occasion had initially been charged as robbery but the prosecution accepted his basis of plea that he did not use the wine bottle in anger and accepted his admission of simple theft. As regards the later incidents, he disputed having scissors, screwdriver or knife, claiming that the items in his pocket had been a pen and a mobile phone, though he acknowledged that he had displayed part of these objects in a bid to intimidate staff and cause them to believe that he might use unlawful violence. A PSR had not been deemed necessary.

On H.’s appeal against a total sentence of four years’ imprisonment following guilty pleas (comprising 16 months for the attempted robbery with 32 months consecutive for the robbery and two months concurrent for the theft), the Court of Appeal noted that the offending came within Category 3B of the guideline in respect of robbery (2016), i.e. instances of medium culpability in respect of less sophisticated commercial premises, thus providing a starting point in contested cases of two years’ custody with a range between one and four years. It was argued on H.’s behalf that the judge had been wrong (a) to increase sentence as much as he did on account of H.’s previous convictions; (b) to find that the offences were at the upper end of Category 3B, thus justifying a higher start point at three years; and (c) to have insufficient regard to the principle of totality, the final sentence in aggregate being neither just or proportionate.

The Appeal Court was not impressed, observing that all the previous convictions for shoplifting were highly relevant, showing a pattern of offending over a period of many years. Further, H. had previous convictions for robbery and attempted robbery, for which he had been sentenced to 18 months’ detention at the age of 16, and a much more recent offence of battery in 2017, for which he received four weeks’ imprisonment. He had now taken his targeting of shops to a different level and staff, simply doing their job, ‘are entitled to the protection of the court against offending of this kind’. ‘An element of deterrence was properly to be included.’

It had to be brought home to [H.] just how serious his offending had become. Had he gone into a corner shop and demanded that the staff hand over goods or money from the till, with the threat of violence, using a weapon which was shown but not produced, sentences of this level or more would certainly be expected. It should not make any difference that the context of these offences was in the open area of a supermarket, rather than the confines of a corner shop.

R v HAWKINS, [2018] 2 Cr App R(S) 11.

Avoiding mechanistic application of guidelines

Aged 19 and of previous good character, S. was asked by H. to purchase nitrous oxide (commonly known as ‘laughing gas’, a euphoria-inducing unlawful substance) on his behalf from an address and was given £250 for that purpose. H. had been in dispute with C., one of the two men living there, apparently arising from a previous deal involving nitrous oxide. In the event, S. accompanied H. to the address, waiting outside until H. returned and told him that the plan had been foiled by a disagreement over money, prompting S. to punch C. C. reported this assault to the police but that evening was confronted by five young men in his hallway, masked by balaclavas or hoods, three being armed with poles or pieces of wood. He retreated, leaving his fellow occupant to face the intruders who demanded the return of their money. Though this victim sought to explain that this issue was nothing to do with him, he was struck on the legs, sustaining swelling and bruising. The assailants then departed in a car driven by S.

In due course S. pleaded guilty to aggravated burglary on the basis of joint enterprise and that he had had no personal prior quarrel with ether occupant of that address and had not been armed. Since the offence he had moved to stay with a relative in another area to remove himself from local peer associates and had also sought to make a positive contribution in the community, included working with disadvantaged children, as evidenced by numerous personal testimonials presented to the Crown Court. He had been open and honest with those employing him about his predicament in facing prosecution. In light of the ‘very serious’ nature of the crime and S.’s role in instigating and organising the attack, ‘returning mob-handed’ after dark, the judge placed the offence within Category 1 (i.e. combining greater harm and higher culpability of the relevant guideline (2011), indicating a starting point of 10 years.

On S.’s appeal against sentence of six years YOI detention, the Court of Appeal observed that on a strict mechanistic application of the guideline the case did fall to be placed within Category 1. However:

a tariff is a tariff for the general and the sentencer is sentencing the particular individual for the particular offence, which requires a close assessment and analysis of the culpability and harm occasioned, against the personal mitigation available (which in this instance was considerable)…Ultimately the sentencer…must ensure that a just and proportionate sentence is imposed.…A strict mechanistic application of the guideline would result, in the particular circumstances of this case, to a sentence duration which would be contrary to the interests of justice.

R v SURGENOR, [2018] 2 Cr App R(S) 9.

Correct application of discount for plea

Aged in his mid-20 s and with no other relevant convictions, H. had been a passenger in a car that attracted police attention. He had tried to run away when the car was stopped. On being detained he was in possession of two mobile telephones that revealed text messages over a two-day period consistent with him dealing cannabis, in the form of requests from would-be purchasers. When his home was searched, the police found a quite large amount of cocaine (8.73 g, with a purity of 4.9%) and cannabis. The prosecution subsequently accepted that the cocaine was for his own use and that the dealing had been undertaken in respect of cannabis only. The defence claimed that he had been selling cannabis to fund his addiction to cocaine. He thus pleaded guilty (on the date set for trial) to being concerned in the supply of cannabis and to possession of cocaine. Having considered a stand down report from the probation service, the judge imposed 12 months’ imprisonment on each count but ordered that the sentence be suspended for 12 months, imposing a nine-month drug rehabilitation requirement and a 20-day rehabilitation activity requirement. The judge purported to reflect credit for guilty plea by suspension of sentence.

On appeal the Court of Appeal agreed that a starting point of 12 months had been appropriate under the relevant guideline (2012), having regard to the aggravating features (playing a significant role in street dealing, for profit) balanced against the mitigating factors. Having identified the length of sentence appropriate after a trial, the judge should have allowed a percentage reduction to reflect guilty plea, in this instance 25 per cent, resulting in a custodial sentence of nine months. The judge should then have considered whether there were grounds that could justify that sentence being suspended and, if so, with what, if any, community requirements. This was not an idle exercise, given H.’s continuing struggle with his addiction to cocaine and the risk that he might end up breaching this order. The Court substituted a suspended term of nine months for the supply offence, with no separate penalty for the simple possession matters.

R v HUSSAIN, [2018] 2 Cr App R(S) 12.

Gross control and coercion: Maximum sentence

In the course of his on-off relationship with V., by whom he had two children aged six and two, H. had been highly controlling and demanding, particularly regarding his constant pre-occupation regarding her contact with other men. Having called on her late at night when she and her three children (his and another man’s aged nine) were asleep and he was intoxicated with alcohol and drugs, H. subjected her to a four hour ordeal in which he accused her of infidelity, interrogated and smashed her phone, bit her face and ear, punched her repeatedly to the head, threw her around the house, causing her to fall, injure herself and lose consciousness, forced her to remove her clothing so he could check and smell her vagina for signs of sexual activity, damaged property and threatened self-harm. She stifled her screams to avoid disturbing the children. He eventually fell asleep and she was able to escape and seek help, requiring in-patient treatment.

Now aged 27, H. had eight sets of prior convictions for 28 offences, over a period of eight years, including ABH, s20 grievous bodily harm and affray. He had incurred custodial sentences including an extended sentence in 2008 and a term of 30 months for GBH in 2013; he had failed to comply with previous court orders.

On H.’s appeal against an extended sentence, combining a four year custodial term with 12 months additional licence liability, following his guilty pleas to one count of ABH assault (maximum term being five years) and two allegations of criminal damage (attracting concurrent terms of 12 months), it was argued on his behalf that though the judge had been entitled to adopt a starting point higher than three years as indicated in the relevant DV guideline (then 2006, since replaced in 2018), a five year starting point had been excessive, given that this was the statutory maximum for the crime, and that H. had been given insufficient credit for his plea. The Court of Appeal considered that the judge had been fully justified in adopting five years’ custody as her starting point, in dealing with a ‘very grave case of appalling domestic violence’. The attack had been brutal and sustained, against a vulnerable victim in her own home where young children were present. His coercive and controlling behaviour had represented a very serious abuse of trust and power. He had used his training as a boxer in injuring her and he had sought to prevent her from seeking help. He had aggravated her ordeal by humiliating and degrading her. His offending was also seriously aggravated by his bad criminal record.

The sentence had to demonstrate that the conduct of the appellant was unacceptable.…Cases where the maximum sentence may be imposed are not limited to those which are the worst that can possibly be conceived. The maximum sentence for an offence may be justified if the particular case falls within the band of cases constituting the worst offending for the offence concerned and is of the utmost gravity for that type of offence.

R v HANNAN, [2018] 2 Cr App R(S) 2.

Threating violence and false imprisonment: Aggravating features

Making a 999 call to the police, a woman explained that she had been obliged to flee her home leaving her children aged six and four behind, because her partner BD, who had been drinking heavily all day, had become violent and abusive when she had caught him urinating in the kitchen sink. He had locked himself into the flat with the children and was refusing to respond to her. When the police attended, BD refused to co-operate and a stand-off ensued lasting several hours, in the course of which he threw lager over officers and urinated at them, exposing his genitals; he brandished a large kitchen knife and a cut-throat razor, threatening to slit the officers’ throats, to throw boiling water and sugar on their faces and to follow them home and injure their families; he further threatened to set fire to the property with himself and the children inside, spraying lighter fluid on the frame to the front door to substantiate his threat and also indicating his intention to turn the gas on to cause a fire. The younger child was highly distressed for much of this time. Trained negotiators were eventually able to calm him sufficiently so that he released the children and further dialogue secured his arrest.

Aged in his mid-30 s, BD had 30 sets of prior convictions for 56 offences, over a period of 19 years, including a term of 16 months for an affray in 2014 in which he had abused and threatened to kill officers attending an earlier domestic incident requiring the intervention of a negotiator. At the time of the current episode, BD had been subject to a suspended sentence order for threatening to kill officers when detained in police custody. However, none of his previous convictions evidenced that he had actually carried out a threat to cause injury.

Following BD’s guilty pleas to false imprisonment and affray, the Crown Court considered a PSR indicating that though he accepted that he had been stupid he attributed this to being unable to take his regular medication prescribed for ADHD. However, he had been without that medication because he had been barred from his GP’s surgery because of his unacceptable behaviour there. Given his various unresolved issues, his tendency to minimise his responsibility and to blame others for his misconduct and his general attitude, he was assessed as posing a high risk of causing serious harm in the future to his partner, any children he had contact with, and those (particularly the police) who sought to control his behaviour. A psychiatric report linked his proclivity towards violence and other offending to a dissocial personality disorder, as well as ADHD, and he also displayed symptoms consistent with PTSD arising from incidents when he had been assaulted. He was assessed as evidencing a low threshold to frustration and anger. However, he did not require a Mental Health Act form of disposal and could be managed in custody where he was responding well to medication.

On BD’s appeal against 44 months for false imprisonment with 18 months concurrent for affray, it was argued on his behalf that though the episode had been outrageous it had lacked grave features such as demands for money or planning. He had acted alone. The children had been held in their own home and had not been subjected to physical restraints; the six-year-old had later said she had not felt bothered by what was going on. The false imprisonment of the children should have been viewed as an extension of a serious affray, an offence punishable by a maximum of three years imprisonment.

The Court of Appeal began by noting that the Sentencing Council had not issued a Definitive Guideline for offences of false imprisonment and ‘special care is required to gauge culpability and harm in order to further the aims of sentencing law and policy where an offence can be committed in a very wide range of circumstances’. In this instance the judge had been entitled to conclude that ‘it would take very little for incidents such as the present one to spill over from threats of violence into actual dangerous violence’. BD had ‘only narrowly escaped being treated as a dangerous offender’. Though undoubtedly a severe sentence it was nonetheless just, proportionate and of a length entirely of the offender’s own making.

He is a man who is used to behaving in a belligerent way, particularly when in drink. His misconduct is a regular habit and the present offences reveal an escalation in the nature of the threats being made (including the use of lighter fuel to prepare to carry them out) and the aggravating feature of the presence of children, one of whom was particularly young and highly distressed.

Running county lines

Dealing with two otherwise unrelated appeals, the Court of Appeal took the opportunity to consider a developing feature of drug supply offending known as ‘cuckooing’ or ‘running county lines’ to guide judges faced with supply practice not appreciated at the time of the current definitive guideline (2012). In essence, city-based dealers, often operating from a street gang base, seek to expand into smaller provincial/coastal locations, aiming to take control of the local market, securing temporary premises in the new area either by latching onto a local dealer who is ill-placed to resist them and taking over his network, or onto a local user, taking over his address as a base for operations. Sometimes a ‘manager’ will be placed in the local area to run operations. Commonly, large supplies of the drug will not be maintained in the provincial centre, but high-frequency deliveries of mid-market quantities will be sent from the metropolitan base. These suppliers frequently seek to use young persons and/or vulnerable adults for the purpose, particularly where those so used are unconvicted and thus more likely to evade police notice. Metropolitan suppliers thus hope to avoid police attention in their own area by operating away from their usual base.

Any person organising such an operation from their metropolitan centre would appear clearly to fall within the category of ‘leading role’ for purposes of assessing culpability under the 2012 Guideline, as would any person who operates as a local manager or enforcer for a drug supply operation of this sort. ‘Judges will need to consider carefully the evidence placed before them, considering such factors consistent with a leading role as expectation of substantial financial gain, substantial links to, and influence on, others in the chain, and directing or organising buying and selling on a commercial scale.’ Those falling short of playing a ‘leading role’ will ordinarily fall into the second category of playing a ‘significant role’.

Where there is evidence of involvement of others in the operation by pressure, influence, intimidation or reward, that should be given particular weight in the assessment of culpability and in determining whether a move upward from the starting point is appropriate. This particular type of offending carries with it the hallmarks of professional crime above and beyond that in ordinary street dealing, so that judges should pay particularly close attention to the assessment of role and the offender’s place within a category range.…Those who work within such an operation and who seek to have a ‘lesser role’ ascribed to them, should expect to have those claims (based, for example, on coercion or lack of awareness of the scale of the operation) examined with care.…The added sophistication of cuckooing operations reflects a further degree of criminality, which judges should be astute to recognise, and to reflect in a particularly careful examination of the three roles by which culpability in drug supply offending is assessed.

The Court considered that A.’s case fell towards the upper end of a ‘significant role’, in particular taking account of the involvement of P. by pressure, intimidation or reward. The guideline indicated a starting point of 54 months’ custody, with a range from 42 months to seven years. Given the circumstances of A.’s offending, ‘no possible complaint can be made about a sentence at the upper end of the range after a trial’. The appeal was dismissed.

Limby In the second instance police officers in Portsmouth had intervened on observing drug dealing on the street. On searching the home of one of those arrested they had located L. and T., both aged 17 and in possession of numerous wraps of heroin and cocaine, plus significant sums of money. Neither had any connection with Portsmouth and they were identified as having travelled there from London specifically for drug supply purposes. L. stated that he was in Portsmouth only because he owed around £2000, having been deemed responsible for losses arising from gang activity. An older person, to whom he could not say no, had taken him to the arrest address and told him what to do, i.e. look after the drugs and the cash. He would not have expected to receive any payment for this role but would simply reduce his debt. He had been involved in significant offending since 2012, including robbery, assault and weapon possession, and had never complied with any court order. He had been victim of an acid attack, losing sight in one eye and causing him to experience PTSD. A PSR had proposed a youth rehabilitation order.

On L.’s appeal against a 24 month detention and training order, the Appeal Court noted that the Crown Court judge had considered him to have played a significant role in this cuckooing operation. The Court had some concern about that, given his age and that what he was employed to do was clearly at the behest of someone else operating within a gang context. Though he had involved himself in gang activity over a number of years, on this occasion what he did had the hallmarks of pressure or coercion and his basis of plea to that general effect had not been challenged. It was thus more appropriate to regard him as playing a ‘lesser role’, though with upward movement to reflect his criminal record and the fact that his involvement arose from his own clearly criminal associations. In the case of an adult a sentence of about four years’ custody would be appropriate, after trial but before credit for mitigation and a guilty plea. The DTO sentence had not been manifestly excessive.

R v AJAYI and R v LIMBY, [2018] 2 Cr App R(S) 1.

High purity cocaine and rapid re-offending

H. was caught with two others in the act of transporting large blocks (284g) of cocaine in compressed powder form, with a purity of 72 per cent and an estimated street value, after cutting, of approximately £20,000. In 2009 he had been sentenced to a total of 14 years and four months’ imprisonment, comprising 100 months for conspiracy to supply cocaine and 72 months for causing grievous bodily harm with intent. He had been a principal dealer of cocaine in South Staffordshire for several years and systematically used violence with weapons to ensure compliance from his associates. He had been released from prison around five months prior to arrest, being on licence until 2022.

On his appeal against sentence of 75 months’ imprisonment following guilty plea to conspiracy to supply a Class A controlled drug, it was argued that the judge had been wrong to treat the purity level of the cocaine as an aggravating feature (because street purity levels of over 70 per cent were now routine in some segments of the market) and that the judge ought not to have increased his sentence because of his previous convictions and breach of licence. The Court of Appeal noted evidence of the emergence of a two-tier market for cocaine associated with a changing demographic profile of users: those able and willing to pay for the drug at 70 per cent plus purity and those who settle for less than 30 per cent purity (seizure results indicating that levels around 15 to 20 per cent are the most prevalent, with as many as one in ten being lower than 10 per cent purity). The relevant guideline (2012) indicated a starting point (for those playing a ‘significant role’, where 150g of cocaine is involved) of 54 months’ custody with a range of 42 months to seven years’ custody. A greater or lesser quantity may increase or decrease the starting point. Though purity is not taken into account in identifying the seriousness level of the offence, ‘high purity’ is identified as an aggravating factor, though without guidance as to what amounts to high purity. In the Court’s view, the sentencing judge must make their own assessment, being entitled to rely on their expertise and knowledge acquired from trying drugs cases, especially in their region.

In this instance the judge’s assessment that 72 per cent was high purity could not be criticised as unreasonable, and he had been entitled to infer from H.’s involvement with such high purity blocks that he ‘was close to the source’. Further, his previous conviction was a significant aggravating factor, as was his commission of this further offence so soon after his release. As his licence in respect of the earlier sentence had been revoked, the 22 months in custody between his arrest and trial did not count towards his new sentence unless the court so ordered. As the Appeal Court had indicated in Kerrigan (2014), a trial judge should exercise discretion to permit time to count only where there were exceptional reasons to do so, for example, excessive delay. In this instance H. had been responsible for the delay by failure to file his defence statement, by seeking adjournments of trial dates, by raising abuse of process arguments and by entering a plea of guilty only on the date finally fixed for his trial. In light of these considerations the judge had been entitled to increase sentence from the starting point of 54 months and to allow H. only a limited 10 per cent discount for late plea. The sentence had not been manifestly excessive and the appeal was dismissed.

R v HUSSAIN, [2018] 2 Cr App R(S) 14.

Psychoactive substances: Applying the guideline

Having been observed by a police officer to be behaving suspiciously on the street, W. was searched and found to have six bags containing green vegetable matter (later found to contain a synthetic cannabinoid considered to be of some, but minimal, street value), two mobile phones and £480. A search of the immediate area located a bag of more green vegetable matter containing the same cannabinoid, with a street value calculated at £500. After being taken into custody W was searched again and found to have a third mobile telephone and a further £190. Four months later and while on bail in respect of the initial offending, W. was again seen behaving suspiciously, this time in a car, and was found in possession of £234, 11 small bags containing cannabis (estimated street value of £110) and two mobile phones. When searched again in custody he was found to have a further £450. A set of electronic scales was found in the car.

Aged 18 at the time of this offending and 19 at the time of sentence, W. had no prior criminal history. He pleaded guilty to one count of possessing a psychoactive substance (PS) with intent to supply (Psychoactive Substances Act 2016 s7) and one count of possessing a Class B drug with intent to supply. A PSR noted his claim that the psychoactive drugs had been for his own personal daily use, funded by his regular gambling. He was considered to demonstrate remorse and described feeling ashamed of his behaviour. He was assessed to pose a low risk of re-offending and of harm to members of the public. The report proposed a suspended sentence order with requirements.

On W.’s appeal against sentence of two years’ detention (16 months for the PS and eight months consecutive for the cannabis offence), the Court of Appeal noted that the Guideline in respect of drug offences (2012) does not cover offences under the 2016 Act and, strictly speaking, is thus not a guideline which a court has a statutory obligation to follow in PS cases. Nevertheless, pending further guidance from the Sentencing Council, the 2012 guideline is ‘undoubtedly relevant in the broader sense of the word when sentencing for a similar offence’. As the psychoactive ingredient of the synthetic compound was a cannabinoid, W.’s case for the purposes of the guidelines was closest to street dealing in cannabis and he fell to be sentenced within the range for an offender playing ‘a significant role’ within Category 3, i.e. with a starting point of one year’s imprisonment and a range of 26 weeks to three years. The sentencing judge had not explained how he arrived at a notional sentence (after a trial) of two years for the psychoactive substance offence. Other than offending on bail, there were no aggravating factors and W.’s youth, previous good character, and remorse counted as mitigation. The notional sentence after contested trial should not have been more than 11 months, indicating a term of seven months after credit for guilty plea. A total sentence of 15 months detention was substituted.

R v WAKA, [2018] 1 Cr App R(S) 54.

Credit for being shot?

When the police attended the crime scene where C. had been shot twice in the course of a drug-related robbery and attempted murder at his home, they discovered wholesale quantities of cocaine and cannabis, £3,000 in cash and drug paraphernalia. His mobile phone clearly indicated his involvement in drug dealing. The cocaine was found to be of a high purity, between 81 and 82 per cent. Aged in his mid-30 s, C. had prior convictions that included possession of cocaine and cannabis with intent to supply for which he had received 16 months’ imprisonment, suspended for two years. His most recent offending had been committed within the operative period of that order. He pleaded guilty to possession with intent to supply a Class A controlled drug, the relevant guideline (2012) indicating starting point of four-and-a-half years with a range between 42 months and seven years. In light of the ‘seriously aggravating’ factors – C.’s previous conviction for a like offence and the high degree of purity of the seized cocaine – the judge adopted a higher starting point of five years, reduced to 40 months’ imprisonment to reflect plea.

On C.’s appeal against sentence it was argued on his behalf that the judge had failed to give proper mitigating weight to the physical and psychological effects of the injuries he had sustained in the shooting and to his cooperation with the police investigation into the attempted murder, including giving evidence at the subsequent trial of the alleged perpetrators. The Court of Appeal was told that he had spent three weeks in hospital, bullets remaining in his stomach and thigh, and that it was estimated that his recovery would take 12 months. He continued to experience sleep disturbance, nightmares and fearfulness. His attackers had a history of violent crime and an extensive network of associates in prison, thus posing risk of further attack in custody. As regards his role in the prosecution of those attackers, the Court learned that the Crown had substantial additional evidence that had led to the identification and their conviction of the two accused, including number plate recognition, CCTV at the scene, fingerprints, mobile phone evidence and injury to one of the defendants who himself was accidently shot. It could not be said that, had C. not given evidence, the convictions would not have been a likely outcome.

The Appeal Court considered that the judge had given substantial mitigating allowance for the injuries and continuing trauma suffered by C. as a consequence of the shooting. However, he had expressly excluded his cooperation with the authorities as having any mitigating value, stating that while this was to his credit, he had been the victim of that crime and had a clear interest in cooperating with the prosecution to get the perpetrators brought to justice. This had been wrong in principle; in cases of very serious crime ‘credit can and should be given to the extent that the defendant has given material assistance’. However, each case depends on its own particular facts; C.’s help had not led to the identification of the culprits and, in light of the very limited extent to which his evidence had assisted in convicting his attackers, the Court concluded that there were no grounds for interfering with this particular sentence.

R v CAMPBELL, [2018] 2 Cr App R(S) 24.

Images: Age of child and relevance for notification liability

Charged with a single count of distributing an indecent photograph of a child, contrary to the Protection of Children Act 1978 s1(1)(b) (under which ‘child’ refers to anyone aged under 18), G eventually pleaded guilty at Crown Court and incurred a 12 month conditional discharge. When the prosecution raised the issue of G.’s liability to sex offender notification requirements the judge indicated that this would also be for 12 months, reflecting the duration of the discharge period.

On G.’s appeal against sentence, the Court of Appeal noted that this was an unusual case in which it was not suggested that he had any sexual interest in children. While some judges might have absolutely discharged the offender it could not be said that a conditional discharge was outside the alternatives properly open to the Crown Court. However, in respect of the notification liability, this fell within the provisions of the Sexual Offences Act 2003 s80 only where the indecent image within the 1978 Act offence showed a person aged under 16. In this instance the investigating officer’s report had assessed the depicted girl’s age as ‘between 15 and 17 years’ and, accordingly, it could not be established that she was clearly under the age of 16 years. Thus no notification liability applied. Though this was not a matter that could be rectified as an appeal issue (since notification liability does not form part of any sentence), the Appeal Court reconstituted itself as a Divisional Court dealing with the point as a matter of judicial review, and granted a quashing order in respect of the Crown Court’s record of G.’s notification liability.

R v GEORGE, [2018] 2 Cr App R(S) 10.

Applying Forbes: Cousin’s breach of trust?

At age 11, D. had moved to live with his aunt and uncle, being treated as their son and as an older brother by their two daughters, his cousins, who were approximately seven and eight years younger than him. When the eldest girl was aged 12 he started to sexually assault her by rubbing her body, extending to touching her vaginal area under her clothing. She eventually told her sister, who informed their mother, but, being scared by the prospect of telling the police, she claimed she had lied. Soon afterwards D. incurred a custodial sentence for robbery, returning to the family home on release. Nine months later (when he was aged 25) he went to the younger cousin’s bedroom and sexually assaulted her, extending to forced vaginal rape, despite her active resistance. He subsequently apologised, offering to go away and never return if she agreed not to report the matter to the police. He then disappeared. Shortly before arrest for the rape he committed further offences, of robbery and assault with intent to rob. He subsequently pleaded guilty to those offences, being sentenced to six years’ imprisonment, with an extension period of two years. He had meantime given a no comment interview in respect of the alleged rape.

Having declined to be present at trial, D. was convicted in his absence of sexually assaulting the older victim and raping the younger. Both made victim statements detailing how D.’s behaviour had had profound effects on their lives, their studies and their attitude towards males and their sense of personal safety. Focusing on the rape, the judge concluded that it fell to be dealt with under the relevant guideline as Category 3 (harm) and Category A (culpability) in view of the abuse of trust, thus indicating a starting point of seven years’ custody and a range of six to nine years. Accordingly, the appropriate sentence was six years’ imprisonment for the rape, with 12 months and two years for the assaults of the other victim, to be served concurrently with each other but consecutive to the six-year sentence, a total of eight years’ imprisonment. The judge opted against such a sentence because D. had already been sentenced to an extended sentence and she considered that she was required (applying Hibbert, 2015) to reflect the change in the offender’s release regime when deciding on the final length of the custodial sentence she imposed. D. thus incurred five years’ imprisonment for the rape and two years concurrent in respect of the earlier sexual offending.*

On reference to the Court of Appeal by the Attorney General on grounds of undue lenience, the Court agreed that the judge had been in error in identifying breach of trust as an aggravating factor in the sexual assault offences. It had been clarified in Forbes (2016) that familial sexual offending by an older member of a family against a younger member of a family does not, for that reason alone, involve a breach of trust. Leaving that point aside, the judge’s initial approach to sentencing had been correct. These were serious offences against two victims in their own home by someone who was regarded as a brother. The abuse of the first victim had taken place over a protracted period and fully justified an overall sentence of two years’ imprisonment. The rape of the second victim had been sudden and had deeply shocked her, being aggravated by the same factors. The appropriate sentence was a consecutive term of six years’ imprisonment.

Should the sentence for the sexual offending be affected by the term D. was already serving? Hibbert had made clear that the regime for release is irrelevant when it comes to determining what the length of a custodial sentence should be. The right question that should apply is whether the total custodial period that the offender will have to serve before he would be considered for release (in this instance eight years: four years for the robbery offences and four years for the sexual offending) is just and proportionate to the totality of the offending. In the Appeal Court’s view, it was in this instance; ‘these were different, serious offences, committed at different times and with different victims’. Accordingly, a total term of eight years was substituted.

ATTORNEY GENERAL’s REFERENCE (R v D.), [2018] 1 Cr App R(S) 47.

*In D.’s case the effect of the sentence imposed by the Crown Court would be that he would serve six years and six months in custody before he could apply for release, comprising two-thirds of the custodial period of the extended sentence (four years) plus one-half of the determinate sentence (two years and six months).

Applying Forbes: Uncle’s breach of trust

Over a period of around 10 months W. (aged in his early 30 s and without any prior convictions) sexually abused his niece by marriage, aged eight/nine, when she visited his home to play or stay over with her cousins. In summary, he showed her a sexually explicit video on his mobile phone, sexually assaulted her when she was in bed (touching her genital area over clothing and her naked chest while her cousins were asleep in the same room), kissed her on the lips and required her to show him her underwear, which he pulled down, and to touch his exposed penis. She eventually complained to her mother who reported him to the police. On arrest W. completely denied these complaints. On examination his mobile phone showed that he had visited pornographic websites.

In sentencing W. following contested trial to 24 months’ immediate imprisonment for seven offences of sexual assault of a child under 13 (SOA 2003 s7), the judge concluded, in light of Forbes (2016), that there had been no abuse of trust in his case, interpreting that judgment to mean that there needs to be something more than a familial relationship to establish a position of trust. She also concluded there had been no grooming behaviour.

On reference to the Court of Appeal by the Attorney General on grounds of undue lenience, the Court noted that the relevant guideline (2013) specified a starting point of two years for a s7 offence of this nature. However, the judge had failed to reflect the totality and overall seriousness of W.’s offending. She had also been wrong in determining that he had not breached trust as there had undoubtedly been a ‘parental or quasi parental relationship’ arising from his position as an adult uncle and carer of the victim whose parents had trusted him to look after her when she visited his home and members of her family. Other aggravating factors which the judge had not reflected included the presence of other children, making the child watch pornography and, in some instances, deliberately isolating the victim (either sending the other children elsewhere or tricking her into being alone with him). A term of 48 months was substituted.

ATTORNEY GENERAL’s REFERENCE (R v W.), [2018] 1 Cr App R(S) 55.

Inciting a ‘child’ via social networking

Over a period of four months C. (aged 30 and without any prior convictions) sent online messages to a recipient who he believed to be a girl aged 13 but was in fact a police officer posing as a child. Having sought to gain the recipient’s trust he began to steer the conversations in a sexual direction, asking her what sexual experience she had had and gradually becoming more explicit, offering to help her through her first experience of masturbation before asking if she would allow him to take her virginity. He repeatedly requested a picture of her and on one occasion sent her a picture of himself ‘with an obvious bulge in his underwear’. When it became clear that he was not going to achieve his requests C. changed the tone of his messages and terminated contact. At time of his ensuing arrest he was in the process of applying for a Disclosure and Barring Service check as he wanted to work with children as a sports coach. His mobile phone revealed indecent images of children, including 32 stills at Category A and 74 at Category B, featuring girls aged eight to ten, plus two extreme images depicting bestiality.

Though C. had not been frank in police interview he subsequently pleaded guilty to inciting a child to engage in sexual activity (SOA 2003 s10, Count 1), together with making indecent photographs of a child and possession of an extreme pornographic image. A PSR reported that he had made full admissions of his offending and had acknowledged his attraction to underage females. In light of his openness, the probation officer considered that his risk could be managed in the community and proposed either a suspended sentence order or a community order with a programme requirement to address his offending.

On C.s appeal against three years’ imprisonment for Count 1, with shorter concurrent terms for the other offences, the Court of Appeal observed that his offending had involved repeated and progressively insistent messaging of a sexual nature, eventually inciting the recipient to agree to full sexual intercourse. However, the Court agreed that the judge had incorrectly located the offence within the relevant guideline (2013) as Category 1 (harm) and Level A (culpability), indicating a starting point of five years with a range of four to 10 years. It was now clear in light of recent appeal judgments dealing with similar circumstances that this case should have been classified as Category 3A (starting point of 26 weeks with a range between a high-level community order and three years’ custody). The Court considered that the custody threshold was crossed, given the period of time over which C. had persisted, the fact that he had incited full sexual intercourse with a girl he believed to be well under age (as he believed to be the case) and the significant disparity in age between him and his intended victim. Further, the case was aggravated by his possession of indecent images of children and of extreme pornography. A term of 21 months was substituted.

R v COOK, [2018] 2 Cr App R(S) 16.

Predator exposure

Aged 30, previously unconvicted and a subscriber to Grinder, an online gay dating site, A. made contact with the profile of ‘Jack’ and continued to message after learning that Jack was aged 14. In fact this was a fictitious profile operated by a vigilante group, ‘Predator Exposure’. Claiming to be aged 26, A. sent explicit photos of himself, sought to find out Jack’s sexual preferences and arranged to meet Jack at his (A.’s) home, supplying the address, with the clear expectation of penetrative sex. Following a visit from the vigilantes and ensuing arrest, A. pleaded guilty to a single count of attempting to meet a child following sexual grooming. A PSR reported that as a Muslim A. had found it difficult to be openly homosexual. He claimed that he did not want to meet 14-year-old boys and had no attraction to children. He expressed shame for his conduct. He had lost his job in a bank and had had to move because of adverse publicity.

The judge determined that the facts placed the offence within Category 1 of the relevant guideline (2013), indicating a starting point of four years’ imprisonment with a range of three to seven years, because A. had sent sexual images, thus constituting ‘an exchange of sexual images’, identified within the guideline as an aggravating factor, and indicative of raised harm, coupled with raised culpability .arising from his intention to indulge in penetrative sexual activity.

On A.s appeal against 32 months’ imprisonment the Court of Appeal first dismissed the argument that there had not been an ‘exchange’ as the sending of images had been one-way, observing robustly that ‘the guidelines are not to be subjected to semantic analysis of that sort’. The Court was also firm that ‘this was clearly a Category 1 offence’, not Category 2 as argued on A.’s behalf. However, the Court agreed that the fact that this was an attempt and that there was no real victim, because ‘Jack’ did not exist, should have been given greater consideration in determining the starting point which the Court concluded to be three years, not four. A term of 24 months was substituted.

R v ABDEEN, [2018] 2 Cr App R(S) 22.

Revenge porn: Lesser seriousness

In the course of their nine-month teenage relationship, V. had allowed B. to take a photograph of her naked above the waist when she was aged 17. After they had split up, V. (now aged 18) communicated with B.’s new girlfriend to warn her of his capacity for infidelity, in the belief that he had pursued his interest in that new relationship while purporting to be committed to her. Angered by what he took to be a bid to spoil his love life, B., now aged 19, had sent the photo to V.’s mother, with a message that if V. did not leave him alone he would ‘expose her to the world’. He was prosecuted for an offence of disclosing a private sexual image with intent to cause distress.*

Around nine months before committing this offence B. (who had already accumulated a history of youthful offending) had incurred four consecutive suspended custodial terms, in aggregate totalling 18 months suspended for 24 months, for four offences including nine months for wounding and three months for driving whilst disqualified. During the suspended sentence order (SSO) he had been caught driving again whilst banned, and in addition to four months’ immediate custody for the new offence the Crown Court had opted to activate the suspended sentence in part, requiring him to serve an additional three months. When sentencing B. to four months’ custody for the ‘revenge porn’ offence, following his guilty plea and committal from magistrates’ court, the judge assumed that she was able to revisit the suspended sentence, requiring him to serve six months of the nine-month term for wounding.

On appeal the Court of Appeal noted that no offence-specific sentencing guideline had been available to the judge.in dealing with a relatively new form of offence. B. had sent a single still image of the complainant, who was not striking any overtly sexual pose or doing anything sexual beyond baring her breasts, not disseminated any more widely than to her mother. However, V. had intended this to be a private matter between her and B. and he had intended to cause distress and had caused very real distress; he knew that V.’s family were very conservative and religious and that her mother would ‘hit the roof’, shocked and ashamed that her daughter had allowed him to have such a photo of her in the first place. The offence was aggravated by the accompanying threat. Though accepting that an immediate custodial sentence was justified, having regard to the fact that B. was already a serving prisoner, the Appeal Court concluded that the judge had over-weighed the level of seriousness, despite the distress caused; given the nature of the image and its limited disclosure, sentence had been excessive and a term of two months was substituted.

As regards the purported further implementation of the suspended sentence, the Court appreciated that the judge who had part-implemented it had sought to activate only the term imposed for driving whilst disqualified. However, the aggregate sentence was in law a single, indivisible custodial term. Though it had been unwittingly implemented initially in a way very favourable to B. that had dealt with the SSO and at the point when the Crown Court dealt with the image offence, there had been no suspended sentence order still extant and capable of activation. Accordingly, the nine-month activation was null and void.

R v BOSTAN, [2018] 2 Cr App R(S) 15.

*An offence created by the Criminal Justice and Courts Act 2015 s33, with a maximum sentence of two years in custody. The Sentencing Council undertook a consultation exercise in 2017 in respect of a number of ‘Intimidatory Offences’, including disclosing private sexual images, and at the time of going to press a Definitive Guideline is anticipated.

Mercy for serious medical condition?

In reviewing together two otherwise unconnected sexual offending cases the Court of Appeal took the opportunity to consider the relevance of a serious medical condition in respect of prospective imprisonment and whether the deteriorating health of an offender could be relevant to the determination of an appeal against sentence in circumstances where that particular health condition had been known to the sentencing court. The Court had regard to principles established in previous appeal judgments, particularly Bernard (1997), and to the Secretary of State’s (SoS) statutory power (under CJA 2003 s248) to order early release on compassionate grounds (see Prison Service Order 6000 Ch.12. Paragraph 12.3.1).

As set out in Bernard:

a medical condition which may at some unidentified future date affect either life expectancy or the prison authorities’ ability to treat a prisoner satisfactorily may call into operation the SoS’s powers of release but is not a reason for this court to interfere with an otherwise appropriate sentence;

Subsequently, in Hall (2013) the Appeal Court had indicated that where the impact of imprisonment upon an offender would be ‘enormously greater’ than the impact on any able-bodied or even significantly disabled prisoner, regard should be had to the principle that a legitimate aim of sentencing is to preserve, to the extent possible, some parity of punishment between otherwise like offenders. In Clarke (2017) the Court had observed in respect of extreme old age that while that factor can legitimately be taken into account in passing sentence, that has to be balanced against the gravity of the offending (including the harm done to victims) and the public interest in setting appropriate punishment for very serious crimes.

Stevenson Aged in her mid-20 s and without previous convictions, S. had been in a committed relationship with her partner since before the birth of her wife’s son and had treated him as her own child. After the boy had begun a social media link with a slightly older girl, S. sent numerous sexually suggestive and explicit messages to the girl (who she had never met), purporting to be her stepson (now aged 12). The girl had shown a degree of interest, for example sending ‘him’ a picture of her naked breasts, but had become upset by the graphic descriptions of what ‘he’ wanted to do to her and ‘his’ failure to stop when asked to desist, prompting complaint to the police, who initially investigated the boy who was formally interviewed. The truth emerged and S. eventually pleaded guilty to causing or inciting a child to engage in sexual activity.

A PSR informed the Crown Court that S. suffered from rheumatoid arthritis, psoriatic arthritis and fibromyalgia which caused her severe pain and limited her physical capabilities to the extent that she had become largely bed-bound and was in need of daily care and heavy medication, circumstances that caused her emotional and psychological deterioration. The reporter suggested that S.’s illness in the two years preceding the offending had taken away her feelings of independence and physical control, and hypothesised that by entering into a form of relationship with the victim S might have been trying to regain some control. She remained in a supportive relationship with her wife and family. Though the Crown Court received no medical evidence on the issues raised in the PSR, numerous testimonials from her family and friends spoke of her severe pain and disability and described her offending as wholly out of character. The probation officer proposed a suspended sentence. Noting that the offending had been planned and sophisticated, had featured a considerable age disparity between S. and the victim and had brought suspicion upon her step-son, the judge considered the case too serious for suspension (stating that the public need to be alerted to the effect such behaviour has on victims) but recognised that time she spent in custody would be much harder for her than for anyone else in her position, thus meriting a reduction in sentence length.

On S.’s appeal against 20 months’ imprisonment, the Court of Appeal received a psychiatric report stating that her account of marked deterioration in her mental state was commensurate with a diagnosis of ‘a moderate depressive episode with somatic syndrome’. Chronic debilitating illnesses such as psoriatic arthritis and fibromyalgia are associated with a high incidence of depressive disorders. Her physical conditions may have masked symptoms of a co-existing mental disorder, with the result that the severity of the mental disorder had not been recognised and treated. Though there was no direct relationship between her mental illness and offending, nonetheless the offence occurred at a time when she was clinically depressed. Poor decision-making is a core symptom of depression and reduced ability to exercise judgment might offer a partial explanation for her actions

The Court considered that though imprisonment was undoubtedly significantly harder for S. her case fell well short of the exceptional circumstances test set out in Bernard. She did not come within the small category of offenders for whom imprisonment is so much harder to tolerate than it is for other prisoners that an exceptional course must in mercy be taken. The judge had correctly concluded that the sentence must take effect immediately and could not be suspended. Although the judge did not have the benefit of any expert medical evidence, the evidence since obtained does not make it necessary or appropriate for this court to take a different approach. Though this was an unusual case sufficient allowance had been made for the mitigating factors relating to S.’s health, both physical and mental, and her appeal was dismissed.

Minhas Aged in his late-60 s, M. had extensive access to his partner’s adult daughter, a young woman with learning difficulties who functioned in many respects like a child aged around five to seven and lacked the capacity to consent to sex, and exploited this by taking her to his flat rather than to her home and having full intercourse with her. He had no previous convictions and had led an exemplary life, working as a respected teacher for many years and serving as a magistrate. When tried for one offence of rape his defence was that his victim had enthusiastically instigated sexual activity. On conviction the judge received medical evidence confirming a diagnosis of motor neurone disease (MND), a condition causing rapid progressive weakness and wasting of the muscles of limbs, trunk, face and throat leading to total paralysis, with inability to speak or swallow and, eventually, to breathe. In M.’s case he had still been able to play golf three months prior to sentence but he was likely to die within two to three years. In passing sentence the judge acknowledged that he might die in custody, ‘subject to any action taken by the prison authorities’.

On M.’s appeal against nine years’ imprisonment it was argued on his behalf that the judge had failed to reduce the length of sentence sufficiently to reflect the difficulties which he would face in prison as a result of MND, and that a deterioration in his condition since the date of sentence had the consequence that he would face exceptionally severe hardship in serving his sentence. The Court of Appeal concurred with the sentence that M. had perpetrated a serious offence upon a highly vulnerable victim, with many aggravating features. However, the Court was ‘in no doubt that the judge failed to treat [M.’s] condition as any mitigation’. The Court also heeded post-sentence evidence of recent significant deterioration in his condition and his prognosis. In consequence:

sentence should be significantly reduced in order to reflect the impact of imprisonment on him in his current state of health and to reflect the fact that he will die from MND in the near future. However, we do not consider that this is a case in which any such reduction can or should lead to [M.’s] immediate release, or that we should reduce the sentence and then suspend it. We must maintain the balance…. between factors personal to the elderly or very ill offender, and the public interest in punishing serious offences, [having regard to] the harm suffered by the victim.

R v STEVENSON and R v MINHAS, [2018] 2 Cr App R(S) 6.