Attorney General's Reference No 25 of 2004 [2004] EWCA Crim 1203

Case No 200401338/A1Neutral Citation Number:- [2004] EWCA Crim 1203
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 28th April 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)]
MR JUSTICE HUGHES
MRS JUSTICE GLOSTER
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 25 OF 2004
Computer Aided Transcript of the Stenograph Notes of
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MR A DERBYSHIRE appeared on behalf of the ATTORNEY GENERAL
MR G ASPDEN appeared on behalf of the OFFENDER
J U D G M E N T
[1]THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence which is said to be unduly lenient. We grant leave.[2]The offender was born in June 1957 and is therefore 46 years of age. On 19th December 2003 he pleaded guilty to a single count of false imprisonment and asked for a further offence of common assault to be taken into consideration. Sentence was adjourned for the preparation of pre-sentence and psychiatric reports. On 6th February 2004 he was sentenced by His Honour Judge Machin, at Lincoln Crown Court, to a 100 hour community punishment order and to a community rehabilitation order for 2 years.[3]The circumstances, in outline, were that the offender assaulted his landlady at the house where he lived as a lodger. He was arrested and charged with offences against her and granted bail, subject to conditions that he should not return to the area and he should not contact her. Three days after bail was granted, he returned to the house and imprisoned his landlady inside. He too was inside and, at one point, he put a knife to her throat. She was there for about an hour. She escaped through an upstairs window.[4]In a little more detail, the victim lived with her two children, who were aged 13 and 11, in a house in Market Deeping, in Lincolnshire. She took in lodgers to pay the rent. There was another lodger there in his sixties, and in poor health.[5]On 1st October 2003 the offender, who had previously lodged with the victim's friend, moved to the victim's house as a second lodger. He and the victim had known each other for 2 or 3 years. According to the victim, the offender would behave strangely and, at first, she put that down to medication which she understood him to be taking for depression. It appears that he had developed an affection for the victim which she did not reciprocate and he, in consequence, was frustrated and anxious.[6]On the evening of 24th November 2003 the victim, having been out celebrating her birthday, returned home with a male friend. They put on music and danced. The offender and the 13 year old child were also in the house. The offender was jealous. He began to behave oddly, coming downstairs and then going back upstairs and mumbling and, at one stage, he left the house, carrying his socks and shoes. He went out by the front door but came back immediately by the back door.[7]The victim spoke to him to find out what was wrong. He told her to go away. He then suddenly slapped her with his open hand and she slapped him back. He slapped her again, harder, causing her to reel back. Her male friend stood up to stop any further violence and the offender said that "if he was to start he would kill him". The offender went into the kitchen and closed the door, where he could be heard opening drawers and removing knives. Understandably, the victim was afraid. Her daughter telephoned the police.[8]When they arrived, the offender was lying face down on the kitchen floor, bare chested. He was lying on top of a wooden curtail pole which he had broken from the kitchen window. There were two knives near his head and others on the work top surfaces. There was a brief struggle. He was arrested.[9]In a statement which she made the following day, the victim described these matters and said that she was very frightened, both for herself and her children. She packed up his possessions for collection and she did not want him back in her house or to contact her in any way. She also described an indecent assault on her, in her home, by the offender on 18th November. She had not previously complained about that but now she wanted to pursue the matter and the offender was charged. The offence of indecent assault was remitted to the Magistrates' Court on 19th December 2003, which was the date on which the offender pleaded guilty to the false imprisonment charge. There had been a defect in the procedure remitting the matter to the Crown Court.[10]The offender had appeared at the Magistrates' Court on 25th November charged with indecent assault and common assault. He was bailed, on condition that he lived at his sister's in Peterborough and did not enter Lincolnshire.[11]There was no further contact between the victim and the offender until three days later, on 28th November. At about 3.30 that afternoon, he telephoned her and spoke to her. She could not understand what he was talking about and put the telephone down. He rang again and asked to speak to the other lodger. Again, she put the telephone down and she went out. She returned about an hour later and was sitting in the living room with the other lodger. The offender burst in, by the back door, which he locked behind him, pushed the other lodger out of the front door and locked that. The victim tried to call the police but the offender tore out the telephone wires. The victim was very scared, crying and shaking.[12]Her 9 year old son returned home. The offender let him in. He told him to stand in the living room and let the offender know when his sister came back. The offender said to the boy that he would not hurt his mother. The sister came back a few minutes later but, when she was inside the house, the offender pushed her and her brother out again. He then told the victim to sit down and he removed his upper clothing. He picked up some knives and tied them round himself with string, first, sitting in an armchair and, then, tying himself to the bannister. He said that he did not care about his life any more but he was not going to hurt her. The doors were locked and the keys thrown by the offender onto the staircase so that they were inaccessible to the victim.[13]Police arrived shortly after 5.00 pm. The offender was shouting and irate. He told the victim to speak to them from the window and tell them to go back to the station until she rang, otherwise he was going to take both their lives. The victim thought that the offender meant what he said. He squashed her against the wall by a window and stood with his arms around her. He put the blade of the knife to her throat and another knife to his own throat. These acts were demonstrated to the police, who were watching below. The offender was described as 'very agitated' and holding the knife to the victim's throat for about 2 minutes. Then he released her. He ordered her to go upstairs. He followed her. He told her to speak to the officers through the upstairs window, which she did. When he returned downstairs she was able to escape through the open first floor window and to climb down over a small adjacent roof.[14]The offender appeared at the front of the house wielding a knife. Later he was seen at the rear, shouting at police officers and occasionally throwing objects at them. He was eventually rendered unconscious by the police using a Taser gun. He was taken to hospital.[15]In the statement which she made later that day, the victim described, on her part, a great amount of fear and being terrified in her own home and thinking he would kill her. She also found, after the offender had been arrested, that he had turned the house upside down.[16]In interview, on 29th November, the offender said that on the 28th he had consumed a large amount of alcohol at a public house and become highly agitated. He decided to return to the house to retrieve some clothing and to clarify what had happened on the night of the 24th and to see if the victim would withdraw the charges against him. Once at her house, he never intended to harm her but he had made what he described as an empty threat. In general, he did not disagree with her account of events.[17]He had, he said, mental problems which caused him to be violent. He would have taken his own life on that day but he would not have hurt his victim. He was sorry for his actions. He had been affected by a combination of medication and alcohol, albeit aware of what he was doing.[18]There was, in fact, no physical injury to the victim.[19]The offender has previous convictions, having regularly appeared before the courts for minor offences of dishonesty between 1984 and 1988, when non-custodial sentences were passed. He was also fined for shoplifting in 1994. In January 2002 he was convicted of making false representations, contrary to the Job Seeker's Act and conditionally discharged for 12 months. In December 2002 he was sentenced to a 40 hour community punishment order, in relation to each of two charges, one of theft and the other of obtaining by deception. He had also been sentenced for the dishonesty offences for which he was conditionally discharged the previous January. For that there was another community punishment order for 40 hours, so the total sentence, on that occasion, in December 2002, was of 120 hours' community punishment. That had not been completed by the time of these events in November 2003. He had not complied with the order because he was acting as a carer for a friend who was terminally ill. The offender has only one conviction for any sort of violence; in 1986, he was sentenced to 3 months for assault occasioning actual bodily harm.[20]There was before the learned sentencing judge, as there is before this Court, a psychiatrist's report from Dr Diane Tamlyn of Rampton Hospital. That report is dated 2nd February 2004. It clearly had a significant impact upon the judge's mind when considering the appropriate sentence in this case. It contains, at page 2, in the fifth paragraph, the following passage:
"He has no history of violence towards women, false imprisonment or sexual fantasies. At the time of the index offence he was suffering from a bereavement reaction and being treated with antidepressant medication by his general practitioner. His judgment is likely to have been impaired by mental illness and his emotional attachment to the complainant and his reckless behaviour precipitated by unaccustomed consumption of alcohol. In conclusion he does not represent a serious risk of re-offending of this nature, nor does he represent a risk to the complainant or women in general. He is at risk of impulsive and ill-judged behaviour when under the influence of alcohol but this could be of any description, not necessarily amounting to criminal behaviour. The offender will benefit from offence focused work on alcohol, thinking skills and relationship skills while in custody. He will also require on going treatment and counselling for prolonged bereavement reaction."
[21]The pre-sentence report before the judge indicated that the offender demonstrated insight into the harm his behaviour had caused the victim and her family, and showed considerable remorse. The offender was adamant that he had intended no harm to the victim or her children and his consideration for the consequences of his behaviour on 28th November had been outweighed by the anger he was experiencing.[22]The report concluded that the offender struggled to employ appropriate coping strategies and may remain at medium to high risk of offending and harm unless he is able to learned new strategies. There was no evidence, the report said, that the offender presented a direct risk towards other members of the public. The report indicated suitability for a community punishment and/or rehabilitation order, designed to address the offender's deficits in thinking skills about decision-making.[23]The judge, in passing sentence, referred to the 10 weeks which the offender had spent in custody prior to sentence. He referred to the "unimaginable" anxiety and fear caused to the victim. But the judge accepted that the offender was "far from being yourself at the time" and still suffered from a residue of bereavement. The judge went on to say that he regarded the offender as a quite exceptional case and he had behaved in a way clearly quite out of character.[24]The submissions to this Court on behalf of the Attorney-General and on behalf of the offender have been, if we may say so, distinguished by their clarity, brevity and forcefulness. On behalf of the Attorney, Mr Derbyshire drew attention to what he submits are three primary aggravating features. First, there was a second offence directed towards the same victim. Secondly, it involved an invasion of the family home and an element of vandalisation of it. Thirdly, the offence took place in breach of conditions of bail, specifically imposed for the purpose of protecting the victim.[25]Mr Derbyshire refers to three secondary aggravating features. First, the vulnerability, in different ways, of the victim in her home, her young children and the elderly and frail other lodger. Secondly, weapons were employed, accompanied by threats to kill. Thirdly, the offender was, at the time, subject to an order of the court imposed many months previously for quite different offences.[26]Mr Derbyshire draws attention to two mitigating features. First, the offender's immediate admission of the offence and expression of remorse and his plea of guilty at the earliest opportunity. Secondly, the minor mental illness in the form of a bereavement reaction which contributed to him acting as he did. Mr Derbyshire also accepts that the judge correctly described this conduct as being out of character.[27]Mr Derbyshire drew attention to several authorities. In particular, in R v Brown 15 Cr App R(S) 337, a sentence of 3 years was upheld, following a guilty plea, by a man with a very bad record, in relation to an offence the circumstances of which bear some similarity to the present. In some respects, Mr Derbyshire submits, the circumstances there were not as serious in the present case, where the fear of being killed, the ejection of the other lodger and the display and use of knives constituted aggravating features not found in Brown.[28]Mr Derbyshire also referred to R v Butterworth 14 Cr App R(S) 674 where, following a trial, a sentence of 4 years was reduced to 3 years, defendant's former girlfriend having been driven round for pistol point for half-an-hour. He also referred to R v Hibbert [2002] 2 Cr App R(S) 106, where a sentence of three-and-a-half years was upheld, following a plea of guilty to an offence involving imprisonment for some 13 hours.[29]Mr Derbyshire's central submission is that a community penalty failed adequately to reflect the gravity of the offence and the aggravating features which we have described. In commenting on the authority of R v Ashbridge [2002] 2 Cr App R(S) 408 Mr Derbyshire drew attention to the features in the present case, not to be found in the authorities referred to in Ashbridge, of a repeated invasion of a home in breach of bail. He submitted that a starting point for an offence of false imprisonment of this kind must be a substantial term of imprisonment. The judge was not justified in taking the exceptional course that he did by reason either of the defendant's frustration or anger or depression, or the fact that he was acting entirely out of character.[30]On behalf of the offender, Mr Aspden made six points. First, he conceded that, for this type of offence, immediate custody of some length must be the sentence, failing exceptional circumstances. Secondly, he relied on Ashbridge (paragraph 18) as identifying a tariff of between 18 months and 3 years as appropriate in a normal case where no exceptional circumstances arise. Thirdly, he said there were here three unexceptional circumstances, namely the earliest possible guilty plea, genuine remorse and the absence from the offender's record of similar previous convictions. Fourthly, he said that there was one exceptional circumstance of mitigation to be found in the report of Dr Tamlyn, in particular the paragraph which we have earlier set out. He stresses that the judge was - and this is clearly right - anxious to reflect that circumstance in the sentence which he passed, which took into account the 10 weeks spent in custody. Fifthly, Mr Aspden submitted that, if the sentence passed was unduly lenient, this Court should exercise its discretion not to interfere with the sentence passed, bearing in mind that the offender has performed more than a quarter of the community punishment which was imposed by the learned judge and his performance, in that regard, is said to have been excellent. It would be particularly harsh to return the offender to prison at this stage, bearing in mind the non-custodial sentence initially passed, and the Court must have regard to the element of double jeopardy involved in sentencing the offender a second time. Mr Aspden's final submission was that, if the Court took the view that a custodial term should now be imposed, it ought to be scaled down, having regard to the three matters identified in his fifth submission.[31]To all of those factors we have regard. As it seems to us, this was an extremely difficult sentencing exercise. We have no doubt that, if there were no exceptional circumstances mitigating the sentence it would properly have been, in the court below, of the order of 3 years' imprisonment on a guilty plea. We say that bearing in mind the very great anxiety which clearly must have been caused to this victim by this offence, in the circumstances which we have outlined. That said, it follows that, on the face of it, this was an unduly lenient sentence.[32]However, we have to consider whether the public interest, as well as the offender's interest, would now be served by sending this offender to prison. In our judgment, it would not, having regard to the progress which the offender has made in carrying out a significant part of the community punishment order which was made, having regard to the non-custodial penalty which was imposed in the first place and having regard to double jeopardy. We also add this, as this Court has said on many previous occasions: sentencing is an art not a science. Where a Crown Court judge has a proper basis for imposing a lenient sentence and even, it may be, in some cases, an unduly lenient sentence, this Court ought not lightly to interfere. There was, as it seems to us, a two-fold proper basis for the judge to take the exceptional course which he did. First, the fact that this conduct, so far as this offender is concerned, was entirely out of character. Secondly, and more importantly, the terms of the psychiatrist's report, which plainly asserted an absence of risk to women in general and this victim, in particular, from the offender.[33]Taking all of those matters into account, although, as we have said, the sentence passed was, at first blush, unduly lenient, it is not one with which this Court thinks it right to interfere.