Smith, R v [2008] EWCA Crim 2276

[2008] EWCA Crim 2276Case No 200803209 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 3rd September 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE JACK
SIR CHARLES GRAY
Between
R E G I N ACrownv
Between
ROY ANTHONY SMITH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S McGarry appeared for Appellant
J U D G M E N T

SIR CHARLES GRAY

[1]: On 3rd December 2004 the appellant, Roy Anthony Smith, was made the subject of an order which restrained him, until further notice, from making contact with a previous partner of his, Ms Foy. She is the mother of his son who was born on 12th January 2001. The restraining order was in the following terms:
"For the purposes of protecting Sandra Foy and Alison Foy from further conduct which amounts to harassment or will cause fear of violence, the defendant is prohibited from -- Directly or indirectly contacting, intimidating, threatening, assaulting, disturbing or otherwise interfering with the peace and comfort of Sandra Foy and Alison Foy."
At that time the court also sentenced the appellant to 18 months' imprisonment.[2]On 22nd April 2008 at the Crown Court at Manchester the appellant pleaded guilty to acting in breach of the harassment order. That plea was tendered on the day when the trial was otherwise due to have taken place. On 13th May 2008 His Honour Judge Ensor sentenced the appellant to 21 months' imprisonment with time spent on remand to count towards sentence.[3]The facts can be briefly stated. Following his release from the earlier prison sentence to which we have referred, Ms Foy allowed the appellant to maintain contact with his son provided he behaved himself. However, on 10th January 2008 the appellant attended at her home and demanded to be admitted. She refused to let him in. The son was in the house. There was material before the court that the appellant then shouted through a vent underneath the window to his son words to the effect that he was going to be living with a dead mother and so on, causing the boy to become distressed. Since the appellant was not being let into the house by Ms Foy, he then went round to the side of the house and jumped over the fence towards the back garden. There had been a history of him doing that and damaging the property. Ms Foy was sufficiently concerned to call the police. They arrived a short time later. A violent struggle took place.[4]It is right that we should point out at this stage that some of Ms Foy's evidence, including the passage where she describes the appellant as having shouted through a vent underneath a window to his son, was contained in a witness statement which was not served on the appellant until after he had entered his guilty plea on the day that the trial was due to start. We understand from Mr McGarry who has appeared before us, as he did before the learned judge, that the appellant made clear at the time that he did not accept that he was in any way verbally abusive on 10th January 2008. No Newton hearing was conducted. In the circumstances, it appears to us that we have no alternative but to disregard that part of the evidence of Ms Foy.[5]The appellant brings this appeal with the leave of the single judge. The evidence of Ms Foy was further that the appellant had subjected her to physical and mental abuse over a lengthy period. We should mention that the struggle involving police officers called to the scene by Ms Foy had already been dealt with in the Magistrates' Court and we need say no more about it.[6]The appellant is now aged 43. According to the Pre-Sentence Report he told the author that he has had an on/off relationship with Ms Foy since he was 15. Ms Foy accepts that she has known the appellant for a number of years and she says that they had a year long relationship several years ago. She accepts that she was prepared to allow the appellant to have access to her son.[7]In the course of his sentencing remarks Judge Ensor described the appellant as "a menace and a danger to women". The appellant does indeed have a large number of previous convictions for, amongst other things, violence. Those previous convictions include three assaults occasioning actual bodily harm, two offences of battery, an offence of wounding with intent and a robbery. Several of the offences were committed against ex-partners of the appellant. The Pre-Sentence Report assessed his risk of re-offending as medium to high.[8]Mr McGarry, for whose written submissions we are grateful, accepts that there are present here a number of significant aggravating features: firstly, the proven history of the violence offered by the appellant towards women, the fact that children were present at the time of the incident, and the concession made by the defendant that the contact was in breach of the restraining order. However, he points out that there are some mitigating features which he submits to be of significance: first, the fact that it had been disclosed by the complainant that the defendant was the natural father of the 7-year old child to whom we have referred; second, the disclosure by the complainant that she did acquiesce in the continuation of a relationship with the defendant; and thirdly, the fact that the prosecution case as related on 10th January 2008 did not include any allegation of physical violence towards Ms Foy.[9]Mr McGarry's contention is that the judge here took too high a starting point. We have, of course, taken account of the Sentencing Guidelines Council definitive guidelines dealing with the breach of a protective order. That guideline was issued in December 2006. It emphasises that when dealing with a protective order such as that made in the present case, the court will need to consider the extent to which the conduct amounting to the breach put the victim at risk of harm. The guideline also sets out a number of potential aggravating and mitigating factors. So far as relevant, the aggravating factors appear to us to include the vulnerability of Ms Foy, the impact upon children and the history of violence applied to this appellant. The mitigating factors include the fact that there was a period of some time when the appellant was complying with the order which was made. The guideline indicates that a custodial sentence of more than 12 months may be appropriate where the breach proved involved significant physical violence and significant physical or psychological harm to the victim.[10]It appears to us that while the appellant was clearly entitled to some credit for his plea of guilty, such credit has to be limited in view of the lateness of the plea. The sentencing judge observed that Ms Foy had been caused further distress by having initially to come to court in order to give evidence. We consider that there are serious aggravating features in the present case, namely the fact that this is the second offence relating to the same victim and the fact that there is, according to Ms Foy, a history of the appellant entering her back garden and causing damage. The conduct of the appellant must inevitably have had an impact on the children in the house. Finally, it is a concern that he is a man given to serious and violent offending.[11]Notwithstanding these consideration, we do accept that the judge must, as Mr McGarry submits, have taken too high a starting point. The resulting sentence is one which appears to us to be in excess of that recommended in the guidelines. The guidelines are not of course a straightjacket but, as the single judge observed, the judge did not give reasons for departing from them. In our judgment, an appropriate starting point would have been 15 months. Deducting 3 months for the late guilty plea we arrive at a sentence of 12 months. We do not overlook the fact that this is a lower sentence than the one that was passed back in 2004. However, the definitive guideline was not, as we have said, promulgated until December 2006. To that extent, we allow the present appeal.