Davy, R v [2007] EWCA Crim 55

No: 2006/5248/A2[2007] EWCA Crim 55
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 19 January 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
SIR CHARLES MANTELL
Between
R E G I N ACrown-v-
Between
HAZEL DAVY
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR G HOARE appeared for APPELLANTMR B MURPHY appeared for CROWN
J U D G M E N T
[1]MRS JUSTICE RAFFERTY: On 10th April 2006 in the Crown Court sitting at Carlisle, this 36-year-old appellant pleaded guilty and on 24th May on rearraignment to a number of counts, in respect of all of which, on 28th September, she was sentenced as follows. For perverting the course of justice, six months' imprisonment. For six instances of forgery, on each 24 months' imprisonment concurrent, consecutive to the six months. For using a false instrument, 24 months concurrent. For three instances of obtaining property by deception, 24 months' concurrent. The total was 30 months. By leave of the single judge she appeals against that sentence on the narrow ground that the judge, having embarked upon a Newton hearing, declined to hear available evidence.[2]The appellant married her second husband, Mr Davy, in the late 1990s. He had paid off the mortgage on his own home before their marriage. They brought together children from previous marriages and they had a number of children together including 11-year-old Megan. Mr Davy was more than happy for the appellant to do some of the administrative tasks associated with his work, as well as organising domestic accounting. He endured no debt and his building business was successful so that money coming in was not scarce.[3]In the early days of March 2005 he found his wife's handbag and in it correspondence addressed not to her but to him which identified loans, mortgages, debts and civil judgments, every one of which was news to him. In respect of one there was the threat of possession proceedings against his home. The following day he took it up with his wife who told him she knew nothing of this but suggested that his three adult children from his first marriage had taken out a mortgage on their (that is Mr and Mrs Davy's) home because of fears that the second marriage would compromise their inheritance. Mr Davy accepted what she said. She fortified it by suggesting that the police had been in contact with his three children. He severed his hitherto affable relations with them and with his first wife, their mother.[4]As the days turned into weeks, the appellant told him that his two sons had threatened to kill her, blackmailed her, demanded about £5,000 in cash and threatened to kill her children. She went into detail. She had paid an intermediary some £75,000 over four years. So to do she had remortgaged their (hers and Mr Davy's) home, which at their marriage he had wholly owned.[5]By 7th April 2005 she was giving the police a statement echoing those comments and going into some detail. It led to the arrest of Mr Davy's two adult sons. It was necessarily some while before the lack of substance in the allegation emerged. Mrs Davy contrived to get her husband to telephone the mortgage providers suggesting it to him as a police-organised trap for his sons. Mr Davy did so.[6]The appellant by the end of the year 2000 had run up an overdraft of approximately £25,000 on their joint account and in the winter months of that year forged a letter to Mr Davy's life insurance company, the object to cash in his personal equity pension. Little shy of £10,000 by cheque was sent to him. She put it in to the overdraft. As to the mortgage she obtained, its deed dated 19th December 2001, she forged her husband's signature and borrowed about £35,000 so as to pay off a portion of the overdraft of £43,000. As to an HSBC credit card, she completed the application form of November 1997 and forged Mr Davy's signature. By use of it she had some £4,300-odd. On another separate credit card she had similarly secured she used about £2,600. She had secured yet another bank card and two further credit cards. She sought to have taken into consideration further offences - the forged applications for further credit cards and their use. The Crown's estimate of the total her criminality had involved was £71,500.[7]On 12th October 2005 she was arrested and in interview admitted her lies about Mr Davy's two adult sons and conceded the forgery. She explained her use of the money as "so as to bring up the children" and for matters innocuous and domestic. She suggested her own parents had repaid some £12,000 to Mr Davy. He was to refute that.[8]In mitigation she put in issue sufficient for the judge to decide to conduct a Newton hearing. That meant that the judge found it appropriate before she made a final conclusion as to fact to hear evidence to fortify her decision. The appellant sought to call the 11-year-old daughter of her union with Mr Davy, Megan. Megan being of tender years her interview had been conducted by those whom Mrs Davy instructed in a video-recorded exercise which reproduced the common form adopted by the Crown. Megan was asked all the appropriate prelimiary questions and the scene satisfactorily set. The object of such mitigatory exercise from the point of view of Mrs Davy was to establish that she had endured violence from her husband such that her developing anxieties about finance she was too fearful to express. She could not face disclosing the position in which she was, if not its worsening state, for fear of more violence. Megan, it was suggested, had seen some and could depose to the truthfulness and reliability of what mitigation that afforded. The judge declined to look at the video of Megan, let alone to hear from her. The complaint in grounds of appeal is that having embarked upon a Newton hearing the judge had by definition indicated that there was an issue of fact to be resolved before sentence. At least part of that exercise required the receipt of what evidence Megan could give. Once the judge, it is accepted only out of an abundance of care for Megan's welfare, declined to receive it, her decision was irregular and affords a tenable ground of appeal.[9]The judge, it is agreed, made plain that her anxiety about Megan's giving evidence was that this was a child of the marriage, not a child of any previous union of either parent. She was concerned about the effect upon an 11-year-old of being called in respect of one parent against the other.[10]The single judge was concerned about the sentencing judge's refusal even to read a transcript of what Megan said and remarked:
"The judge in sentencing on the face of the papers gave cogent reasons for the sentence passed and it is difficult to argue that the sentence was manifestly excessive. However your grounds do raise a point of principle about the conduct of Newton hearings and whether a judge can 'shut the defence out' by declining to receive defence evidence. This merits consideration by the full court..."
[11]Counsel has been able to tell us those matters as to which Megan could have been heard and they are these. Before the discovery of any of these indicted offences, Megan had witnessed scenes of parental argument. Twice she had seen minor incidents of violence from her father towards her mother, one a pushing, another a slap or slapping. That is the high watermark of what the judge could have derived from what Megan could have said. In our judgment the criticism of the judicial approach in declining to receive what Megan said is well-founded. This is not an occasion when the judge, as she would have been entitled to do, indicated that proffered mitigation was implausible and rejected it. Rather, she embarked upon a Newton hearing and then appeared at the very least to close out a portion of it. Had she taken the view that in the best interests of Megan, as to which she was understandably and rightly concerned, the giving of evidence could be avoided by her receiving (by agreed means) the information Megan could give and computing it in to her thought process so as to reflect it at its highest for the appellant, no criticism could possibly have been mounted.[12]This court understands entirely the judge's concern for the welfare of the child in her difficult circumstances but, as we have made plain, once a Newton hearing had begun it was important that the judge absorbed that which she properly could from it.[13]That being so, what of the sentence imposed? Necessarily the criticism voiced in the grounds of appeal is that it is manifestly excessive in light of the fact at least in part that the basis was derived from unfair process. To that end one must review the antecedents of this appellant who was born on 25th June 1970 and had a previous conviction for six uses of a false instrument for which, on 30th November 1992, she was made the subject of a nine month sentence of imprisonment suspended for 12 months. Those offences were the forged signature of her first husband for the purposes of borrowing money. In mitigation before that court there was a light trailing of a coat suggesting that perhaps that husband too had been violent so as to inhibit her expressing to him the developing difficult position.[14]It is difficult to see that the terms of imprisonment upon which Her Honour Judge Forrester settled could be described as manifestly excessive. One need look no further than the six months' imprisonment imposed for count 1 (perverting the course of justice). Not only is it not manifestly excessive, in the light of all the facts before the court many might describe it as quite remarkable in its generosity. The total term of 24 months' imprisonment for the course of conduct undertaken by this appellant, who was not treading these paths of criminality for the first time, more than merited a total term of 24 months and cannot conceivably be described as manifestly excessive. Even if any one of this court had sat as the sentencing judge, received that which Megan could have said and accepted for the purposes of sentencing every word of it, none of us would have passed a sentence a day less. This appeal is dismissed.