General sentencing issues

Blackmailing mother: Balancing offence aggravation with offender mitigation

Aged in her early 20s, R. had communicated with X. (a former repeat but casual sexual partner) for around 12 months, first telling him falsely that she was pregnant by him (she had been genuinely pregnant by him previously and he had paid for her abortion) and demanding money to pay for a further termination, warning him that otherwise she would give birth. She went on to tell him sequentially that his son had been born, was seriously ill, had been adopted and had died. He had paid her in total nearly £30,000 as his contribution towards the ‘child’, including his ‘funeral’, absorbing his savings and causing him to incur considerable debt. When X. first suspected the truth and confronted her, warning her that he would inform the police, she threatened to tell the police that he had raped her. His partner began to receive anonymous messages by Facebook, originating from R. He continued to give her money. Following prolonged and unexplained delay between complaint and prosecution she eventually pleaded guilty to a single count of blackmail. She had no prior convictions but shortly before meeting X. online had incurred a caution for theft arising from money missing from her father’s home.

A pre-sentence report (PSR) recorded that R. had thought that her relationship with X. was more serious than he had later described it and had been hurt and upset on discovering that he had started a new relationship. The probation officer concluded that feelings of hurt, resentment, and jealousy had been the main drivers behind her offending rather than money, which she apparently did not need. Her offending appeared out-of-character and had occurred in circumstances which were considered unlikely to be repeated if appropriate support and interventions were put in place. Full-time mother of two children aged three and 14 months and pregnant with a third child by an on–off partner, she was reliant on Universal Credit. Her mother had died when she was aged 10 and she had no continuing family support. She believed that the fathers of her children would be willing to care for their respective child if she was sent to prison but that would cause sibling separation. The report expressed concern for her emotional well-being, particularly if she was imprisoned. She had been prescribed antidepressants and had shown recent signs of having self-harmed; there were marks on her arms which she tried to hide. The Midwifery Team had advised that her pregnancy was high risk and might not run to full term. She was considered suitable for a community order with a rehabilitation activity requirement. A victim statement indicated that X. felt very hurt that his financial outlay on a fictitious child had fundamentally undermined his capacity to provide for his child by his current partner. J. incurred a four-month immediate custodial sentence. She was released on home detention curfew prior to her due date for her third child.

On reference by the Attorney General (AG) on grounds of undue leniency, it was argued that the judge’s starting point (18 months following contested trial) was significantly too low and should not have been less than four years’ custody, before credit for mitigating factors. By way of general observation, the Court of Appeal noted that blackmail (maximum sentence of 14 years; no definitive sentencing guideline yet published) is properly regarded as ‘an ugly and vicious crime’ that should always attract severe, deterrent sentence. In this instance, regard was required to: (a) ‘the relationship between the amount of money demanded and the means available to the victim to pay’ (X.’s funds had been exhausted); (b) the psychological harm done and intended to be done (R. had intended to exert the maximum pressure on X.); (c) the duration and persistence of R.’s demands.

As regards sentencing the sole carers of dependent children, the approach of the Court has been that where the sentence merited lies on the cusp of custody, ‘the balance is likely to be a fine one’ and the anticipated interference with family life ‘can sometimes tip the scales and mean that a custodial sentence, otherwise proportionate, may become disproportionate and therefore inappropriate’: However, the likelihood of disruption of family life being disproportionate ‘is progressively reduced the graver the offence’.

As regards the distress and anxiety arising from the exposure to a resentencing exercise on AG’s Reference (‘double jeopardy’) this is ‘likely to be particularly great where the decision of this Court results in a defendant being placed in prison where originally no custodial sentence was employed, where a custodial sentence has been completed, where the defendant is young and immature, or where the defendant was about to be discharged from prison’. However, where a judge has departed from a Definitive Guideline without explanation or good reason, it should be readily apparent to the advocate advising an offender that the sentence might be referred to this Court.

In this case, the judge’s starting point had been significantly too low. Having regard to R.’s mitigating circumstances, a term of 48 months would have been appropriate following jury trial, discounted to 32 months to reflect plea. Though it was important to retain appreciation of the victim perspective, a further reduction by a quarter to 24 months was justified to reflect double jeopardy. Though immediate custody was right in principle, the Court determined that, given the ‘unusual’ considerations applying in R.’s case, it was appropriate to suspend that increased sentence, with the rehabilitation requirement proposed in the PSR, though this conclusion ‘should give no comfort to the generality of blackmailers’.

ATTORNEY-GENERAL’s REFERENCE (R v ROBERTS), [2020] 1 Cr App R(S) 53.

Staged robbery: Suspension of imprisonment

H., her partner O’C and her friend O’L planned a staged robbery of the betting shop branch where O’L worked. Knowing through her the time of evening when gaming machines were emptied and having purported to be waiting at a nearby bus stop with H. and her child, O’C entered, brandishing a baton, menacing staff and customers and demanding money. O’L cooperated, handing him £6,600 from the safe (not from the till, as staff had been instructed by their employer). Investigating police were able to trace O’L’s links with H. and O’C by analysing her mobile phone record, together with CCTV footage showing H. and O’C near the scene at the relevant time. She had received £2,000 from the sum taken, used by her account to buy a car while H., mother of a child aged three, said that she had used her share to pay bills and purchase food. Both now aged around 20 and each without prior convictions, H. and O’L pleaded guilty to conspiracy to steal, while O’C pleaded guilty to robbery.

A psychological report indicated that O’L (who was in mid-degree course) was a ‘complex and very troubled woman’ who had experienced long-term interfamilial sexual abuse and a separate incident of sexual assault. She had mental health problems as a teenager and was diagnosed with anxiety, depression, and emerging emotionally unstable personality disorder. She had attempted suicide during her university studies. A PSR also drew attention to her immaturity and mental health issues.

On the two women’s appeals against their immediate custodial sentences of 12 months, it was argued on O’L’s behalf that her culpability had been overestimated. Her crime had not evidenced breach of a high degree of trust, had been unsophisticated without significant planning; O’C (aged in his mid-30s with a history of offending, incurring 40 months on guilty plea to robbery) had been the instigator and perpetrator and she had not played a leading role and had not appreciated that the force used by O’C would be so considerable. Further, insufficient regard had been paid to her youth and personal mitigation, including the adverse impact of custody on her studies, and her sentence should have been suspended. In support, the Court of Appeal was referred to the International Legal Framework for Female Offenders contained in the UN Convention on the Elimination of all Forms of Discrimination Against Women (ratified by the United Kingdom in 1986) [though its ensuing judgment drew no support from that source]. On H.’s behalf, it was submitted that she had become involved through her then partner’s coercion, intimidation, or exploitation and had limited awareness of the full extent of his crime. Immediate custody impacted on her solo responsibility for and care of her dependent child who had evidenced great distress because of her absence.

The Appeal Court began with some basic relevant observations, including:

where there is evidence that offending is linked to immaturity the principles of youth sentencing will be relevant in the assessment of culpability and appropriate disposal;

As regards O’L, the judge had been entitled to regard her culpability as high; her breach of trust had been clear and serious; she was ‘at the heart of the exercise’, sharing vital information and playing an active role in the crime, and must have known there was at the least a risk of the use or threat of force. She was properly considered within Category 3A of the relevant Guideline (Theft, 2016), with a starting point of 12 month’s custody and a range between 26 weeks and two years’ custody. However, a starting point of 18 months before credit for plea had been manifestly excessive, given the absence of any aggravating factors and the considerable mitigation available to her. Her poor mental health had made her vulnerable to exploitation. She was highly suggestible and had been seriously mentally unwell at the time of the crime. An appropriate term would be nine months’ detention, reduced to six months to reflect plea. As for suspension, O’L was assessed as a low risk of reoffending and had a realistic prospect of rehabilitation but had been receiving no mental health treatment in custody. Detention would compromise her education, her prospects, and life opportunities. By refusing to suspend her sentence, the judge could not have given adequate consideration to her complex issues and personal circumstances. That decision had resulted in a manifestly excessive sentence, and a six-month term suspended for 12 months was substituted, without conditions to reflect the month she had already served.

As regards H., the Appeal Court was firm that her offending had come within Category 3B of the Guideline (indicating a starting point of a high-level community order with a range from low-level community order to 36 weeks’ custody), not 3C as had been argued, given that she had extensively contributed to the planning of the crime and had facilitated O’C with a ‘decoy’ through the presence of her infant child nearby. The judge’s starting point had thus been manifestly excessive. An appropriate starting point would be 12 weeks’ custody, resulting in eight weeks to reflect plea. It was more difficult in H.’s case to conclude that appropriate punishment could only be achieved by immediate custody. ‘All three factors pointing towards suspension were present in her case and powerfully so’, given ‘a realistic prospect of rehabilitation and very strong personal mitigation’. Further, immediate custody would result in significant harmful impact on her infant child. ‘This was a paradigm example’ of a case where sentence should have been suspended and the Court substituted a suspended sentence order (SSO) with a 12-month operational period, without conditions to reflect time served. [Note: It is worth comparing the decisions in Wakil and Mandishona (below), where SSOs were respectively refused and substituted.]

R v HUSSAIN and O’LEARY, [2020] 1 Cr App R(S) 32.

Funding terrorism: Suggestibility and culpability

At age 16 following ‘radicalisation’ W.’s younger sister left home to travel to Syria to join the ‘Islamic State’, marrying and having a child by a Daesh fighter. Her family were warned by the police not to send her money as this could constitute the offence of funding terrorism. In due course, she began pressuring her brothers to send funds (via a contact point in Lebanon) to enable her to pay traffickers to arrange her escape from Syria. W. sent her US$3,000, using the help of an acquaintance (proceeding even though specifically re-warned against doing so), but she did not leave, telling him that she needed more funds as the smugglers’ price had risen. He did not send more. He was prosecuted for entering into a funding arrangement for the purposes of terrorism, contrary to Terrorism Act 2000 s17, being convicted following trial. The issue before the jury was whether he had known or had reasonable cause (viewed objectively) to suspect that the money would or might be used for the purposes of terrorism.

Now aged in his mid-20s and without any prior criminal history, W. had been diagnosed before the crime with paranoid schizophrenia and his psychosis had adversely affected his already low level of intellectual functioning, which was assessed to place him in the Borderline IQ range (i.e. in the bottom 2%). Additionally, he manifested a significantly heightened level of suggestibility. The judge located his offending within Category 3B of the Terrorist offences guideline (2018) (on the basis that the money sent ‘was likely to make a minor contribution to furthering terrorism’), indicating a starting point of four years’ custody and a range from two to five years. He still lived at home with his parents, had never had a relationship, had no real friends, and had held no employment for several years. He was socially isolated and, on any view, was rightly deemed vulnerable. The judge accepted that although he should have realised the risk that the money might be used for terrorist purposes, he genuinely wanted to help his sister pay for smugglers’ services to escape with her baby from Syria.

On his appeal against 30 months’ imprisonment, Burnett CJ reiterated that ‘guidelines are always guidelines, nothing more’ and do not ‘create impermeable or hermitically sealed categories which place a straitjacket around a sentencing judge’. There is often overlap between categories and regularly some difficulty arises in identifying precisely where in a guideline the offending lies. ‘The subtleties of both the circumstances of the offending and also of the offender must always be taken fully into account before arriving at sentence.’ The Court of Appeal concluded that, notwithstanding the aggravating feature arising from W.’s failure to heed the clear warnings given, his offence was committed substantially as a result of his suggestibility and ‘his difficulties in resisting his sister’s blandishments, which most other people would have been capable of resisting’. His particular personal circumstances, including the additional difficulties that custody would cause him, called for a greater reduction from the starting point and, though immediate custody was unavoidable, a term of 20 months was substituted.

R v WAKIL, [2020] 1 Cr App R(S) 11.

Intimate partner violence: Pregnancy and vulnerability

As a consequence of a four-month relationship with A. the victim (V., mother of three young children) faced the predicament of an unsought pregnancy by him and her wish to finish with him, not least because she strongly suspected him of infidelity. Having told him it was over between them, she agreed to meet him to discuss the pregnancy (now four to six weeks in) and ended up agreeing to stay with him at a hotel for the night. Before they checked in, A. suddenly punched her hard to the face, fracturing her eye socket in several places, before running away. Thereafter he persistently contacted V. by phone and text, combining protestations of affection with abuse, frightening her enough to prompt her to move into a women’s refuge, causing her home to be repossessed. Meanwhile he ignored requests from the police to hand himself in.

Prosecuted for GBH (s20) assault and harassment, A. was found guilty of the former but acquitted of the latter. Aged in his late 20s he had numerous prior convictions, many for dishonesty but two for assault (neither of a partner), several for racially aggravated disorder and one for intimidation by malicious communication of a previous partner. Two days before the current crime he had been conditionally discharged for cannabis possession. Proceeding to sentence without a PSR, the judge deemed the GBH to count as a Category 1 offence under the Domestic Violence guideline (2018) on the basis of greater harm because the victim had been ‘particularly vulnerable because of her personal circumstances’ due to her pregnancy (of which he was aware), combined with other aggravating factors such as the location/time of crime.

On A.’s appeal against a term of 42 months (imposed with a restraining order against which there was no challenge), it was argued that a woman, in the early stage of an uncomplicated pregnancy was not ‘particularly vulnerable by reason of her personal circumstances’. At worst, the attack had come near the top of the range for a Category 2 offence, three years’ imprisonment. The Court of Appeal indicated that it did not consider that ‘a woman who is four to six weeks pregnant is necessarily and invariably to be regarded as particularly vulnerable’ within the Guideline. That is a matter to be determined on a case-by-case basis. However, taking account of the other circumstances, including in particular the aftermath in which V. had felt it necessary to leave her home, the judge had been entitled to deem this high culpability crime a Category 1 offence and the sentence had not been manifestly excessive.

R v ANGLIS, [2020] 1 Cr App R(S) 37.