Evans, R. v [2007] EWCA Crim 1158

Case No 2007/02143/A4

[2007] EWCA Crim 1158

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 2 May 2007

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE GROSS

and

MR JUSTICE UNDERHILL

Between

R E G I N ACrown

- v -

Between

DOROTHY GERTRUDE EVANS

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MR D WEBSTER appeared for APPLICANT

J U D G M E N T

[1]This is a sad case in that it involves an application for leave to appeal against a six month prison sentence by an 82 year old woman. Mrs Dorothy Evans, the applicant, lives with her daughter in Park Crescent, Abergavenny. Over the last ten or so years she has been in dispute with her neighbours -- that is, both her present neighbours and their predecessors. Regrettably, she has found it impossible to conduct herself in these disputes in a civilised and law-abiding manner. As a result she has found herself before the courts on a number of occasions.

[2]In bare outline the relevant history is as follows. On 8 November 1999, she was found guilty of three offences of harassment contrary to section 2 of the Protection from Harassment Act 1997. She was fined and made subject to a Restraining Order under the 1997 Act -- that is, an order prohibiting her from acts of harassment of the kind specified in the order. Unfortunately, she seems to have paid no regard to the terms of the restraining order because on 19 March 2001, as a result of no fewer than seven breaches of it, His Honour Judge Morris in the Cardiff Crown Court sentenced her to six months' imprisonment suspended for two years. We need not give details of all the breaches. In summary they consisted of offensive and abusive observations, and repeated threatening gestures aimed at her neighbours. On 6 August 2004, the applicant appeared before the Cardiff Crown Court for a further breach of the restraining order. The offence occurred in the 23rd month of the suspension period; but it appears from the pre-sentence report prepared on that occasion that the applicant believed that the suspension had expired. The fact that she started to offend again as soon as she believed that the threat of automatic imprisonment had been lifted may be significant. On this occasion, however, the judge did not impose a prison sentence. He fined the applicant £1,000, with 45 days' imprisonment in default, together with £1,500 in costs. It is fair that we should record that she was acquitted on five other charges for breaches of the order on that occasion. In November 2004 the next door property was sold to a Mr and Mrs Casa. Relations between them and the applicant were initially quite good, but in the period before Mr and Mrs Casa's predecessors moved out there were further incidents between them and the applicant as a result of which, on 17 May 2005, she was convicted in the Gwent Magistrates' Court of criminal damage and harassment. The magistrates fined her £300, ordered her to pay £300 costs and made an Anti-Social Behaviour Order which prohibited the applicant from "acting in a manner which causes or is likely to cause alarm, harassment or distress to any neighbour or other person in Park Crescent, Abergavenny".

[3]That brings us to the matters which are the subject of the present proceedings. The applicant failed to comply with the Anti-Social Behaviour Order imposed by the magistrates. Over the early months of 2006 there were a series of incidents in which she harassed Mr and Mrs Casa. Again we need not set them out in detail. She repeatedly shouted abuse at them, including such terms as "jezebel" and "whore". She used foul language and referred derogatorily to their Italian origin. Although there was no physical violence, the applicant's conduct was such that Mr and Mrs Casa were in fear that she would attack them or their children. Accordingly, the applicant was charged with breach of the Anti-Social Behaviour Order. She denied the offences. On 23 February 2007, after a trial before Judge Denyer QC and a jury in the Cardiff Crown Court, she was convicted of one count of harassment and six counts of breach of the Anti-Social Behaviour Order. The judge adjourned the case for a pre-sentence report and a report from her general practitioner.

[4]The applicant failed to attend the appointment for an interview with the probation officer, notwithstanding that it was a condition of her bail that she should do so. The circumstances appear from the short report of the probation officer, which we set out since it clearly illustrates the applicant's attitude. The probation officer says this:

"1. .... Mrs Evans visited the Pontypool Probation Office on the afternoon of 27 February 2007 and I handed her the appointment letter. She insisted that her appointment should be before this date but I explained that it was not possible to bring it forward as I had a commitment to several other court reports required before hers. 2. Two days later Mrs Evans' daughter telephoned me to request again that the report was done quickly as she said her mother wanted to spend a week away with a relative, and this clashed with the interview appointment. The daughter said the week away was important for her mother at her age. I explained my commitments again and could hear Mrs Evans talking angrily in the background, shouting instructions to her daughter. I emphasised that her mother's priority should be to stay out of prison and therefore co-operate with the Probation Service and make herself available for the probation interview and appointments for the medical report. 3. Mrs Evans did not attend the interview on 15 March 2006 for the pre-sentence report, and made no contact to explain her absence."

[5]The report from the general practitioner shows a history of ailments of the kind not untypical for a lady of her age, most seriously a tentative diagnosis of a heart condition and a history of recurrent deep vein thrombosis, as a result of which she is on a course of warfarin. But she was certainly not acutely ill. She was, for example, able to travel to America both last year and indeed on the occasion that she missed the interview with the probation officer. There is no evidence whatever of any psychiatric condition.

[6]When the matter came back before the judge on 17 March 2007, the applicant's counsel applied for an adjournment to allow a pre-sentence report to be prepared. The judge was rightly not prepared to take that course, given that there was no proper excuse for her failure to co-operate with the probation officer thus far. The judge said that he would make such use as he could of the pre-sentence report prepared for the purpose of her sentence in 2004. He also had before him victim impact statements from Mr and Mrs Casa. It is clear from the material which was before him that the applicant's conduct had put huge pressure and strain on them, as the unreasonable conduct of a neighbour all too often does. The applicant put in character evidence from other people of the neighbourhood testifying to her general kindness and good nature.

[7]In his sentencing remarks

Judge Denyer said this:

"Mr and Mrs Casa were eminently decent and reasonable people, who did their best to get on with you. You made their life a misery, as was apparent both at the trial and in subsequent victim impact statements. You have a long history of offences of this kind." 8. "

These offences all involve neighbours of yours. It is abundantly clear you will not change. I refer, in that context, to a pre-sentence report from 2004. The author says this: 'I gave the defendant numerous opportunities to accept she had some responsibility for her actions but she adamantly refused to accept any blame or responsibility. She has no sympathy for the victims of this harassment or understanding of how those incidents have impacted on the lives of the neighbours and she expressed the view that neighbours were conspiring to ensure she was sent to prison.' 9. Most recently, when it was an express condition of your bail that you co-operate with the Probation Service, you deliberately did not attend a meeting that had been arranged." He set out the circumstances of that and continued: 10. "I accept that, of course, there is a good and positive side to your nature as well as your bad behaviour towards neighbours. There are references from people who have been your neighbours, which speak well of you. But it seems to me that, in spite of your age and in spite of your infirmities, you have deliberately, for a period now of getting on for ten years, made life a misery for neighbours and, in my view, the consequences of your behaviour must now be brought home to you. 11. Because of your age the prison sentence which, in my judgment is inevitable, will be much shorter than would be the case were you many years younger." He went on to impose the term of six months' imprisonment to which we have referred.

[8]An application for leave to appeal against that sentence has been referred to this court by the Registrar.

[9]In the grounds of appeal initially advanced, it was suggested that a prison sentence was inappropriate, having regard to the nature of the offences alleged. There is nothing whatever in this. The applicant's conduct, as we have recounted it, was quite plainly such as to make a prison sentence inevitable had she been a younger woman. She has had ample warning that unless she learns to behave in a civilised way she was liable to go to prison. But she has nevertheless persistently flouted court orders and, more importantly, continued to make her neighbours' life a misery. As to her health, there is no evidence of any condition which would make a prison sentence inappropriate.

He set out the circumstances of that and continued:

[10]The only point, therefore, is the applicant's age. It is very rare that a court will have to consider sending to prison anyone in their eighties. It is a course which will only be taken as a last resort and with great reluctance. But the judge plainly felt that this was one of those rare cases where there was in truth no alternative. We agree. We frankly doubt whether, given her history, a non-custodial sentence of any kind would have been effective to restrain the applicant's behaviour. She is, as the 2004 report says, unwilling or unable to appreciate how difficult she is making life for her neighbours. She has not been deterred by the experience of fines or a suspended sentence of imprisonment in the past. Even if there were some chance that a community sentence might have been effective, the applicant prevented that being considered by her refusal to co-operate with the probation officer. Old age is not a licence to disregard the law or the requirements of decent behaviour towards others in the community. Nor was this a case in which the applicant could pray in aid a plea of guilty. Even before us Mr Webster, who has made eloquent and well-judged submissions on her behalf, has been unable to offer on instructions any expression of contrition such as might found a plea for mercy from this court.

[11]For all these reasons we can see nothing wrong in an immediate custodial sentence. Indeed Mr Webster realistically acknowledged that in his oral submissions.

[12]As to the length of that sentence, we can well understand why in the circumstances of this case the judge felt that six months was the least term which he could justify. However, after anxious reflection, we believe that a somewhat shorter term would be sufficient to meet the justice of this case. This was pre-eminently a case in which what was needed was "the clang of the prison gates" in order to bring home to the applicant the seriousness with which the court took her conduct. For an offender of the applicant's age a sentence of six months' imprisonment, which might well be an appropriate term for that purpose in the case of someone younger, is in many ways equivalent to a longer term. She is, as we have been reminded in submissions today, particularly vulnerable in prison. For those reasons, and without in any way criticising the judge, we feel able to reduce the term of imprisonment to one of four months.

[13]In making this reduction we would not wish it to be thought that we underestimate the seriousness of the impact which her behaviour has had on her victims. But the fact is that an additional two months in prison is not going to solve the problems which she has already caused. If the experience of prison is going to encourage her to behave herself, that will be as well achieved by four months as by six.

[14]As to the future, as the sentencing judge pointed out, the Anti-Social Behaviour Order remains in force. The applicant should be under no illusions that the courts are perfectly prepared to pass a prison sentence if there are further serious breaches of the order.

[15]Since this is an application for leave, the first order we make is to grant leave. But since the applicant is present in court, it is possible for us to treat this as the disposal of the appeal. We propose therefore to allow the appeal to the extent of reducing the term of imprisonment from six months to four months.

[16]MR JUSTICE GROSS: Mr Webster, would you please explain to your client in words of one syllable the warning of which my Lord reminded her in the final sentences of our judgment.

[17]MR WEBSTER: My Lord, I shall. ________________________________