Illing, R v [2017] EWCA Crim 1347

Case No 201701789/A2[2017] EWCA Crim 1347
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 18 August 2017
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE SWEENEY
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
LEE BARRY ILLING
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
Mr P Donegan (Solicitor Advocate) appeared for Appellant
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 22nd March 2017, in the Crown Court at Ipswich, this appellant pleaded guilty to four offences of acting in breach of a restraining order, contrary to section 5 of the Protection from Harassment Act 1997 and one offence of failing to comply with notification requirements, contrary to section 91 of the Sexual Offences Act 2003. The first four offences were charged on counts 1, 2, 6 and 7 of an indictment. The failure to comply with notification requirements was charged in count 3.[2]The learned judge imposed sentences of 15 months concurrent on each of counts 1, 2, 6 and 7 and 15 months consecutive on count 3. Thus the total sentence was one of 30 months' imprisonment. The appellant appeals against that sentence by leave of the single judge.[3]In order to set the offences in their proper context it is appropriate to start by referring to the appellant's previous history of offending. He began as a juvenile. As a young adult he committed a number of serious offences of dishonesty and offences of violence. Then coming to matters relevant to his attitude towards the orders of the court, we note that in October 2009 he received a short prison sentence for breach of a restraining order. In August 2012 he was convicted of a sexual offence, for which a prison sentence was imposed and he was made subject to a restraining order. On 13th February 2015 he received a sentence of 12 weeks' imprisonment for failing to comply with the notification requirements. On 30th January 2016, he again received a sentence of 12 weeks' imprisonment for a further offence of failing to comply with the notification requirements. On 20th April 2016, in circumstances which did not involve any criminal conviction, a restraining order was made, which prohibited the appellant from contacting in any way a named woman and also prohibited him from entering Colchester borough for any purpose. The restraining order is printed on a form which includes the following warning, the terms of which could hardly be simpler or clearer:
"If you do not obey any part of this order you will commit an offence and may be sent to prison for up to five years. You will commit the offence if you disobey this order even once."
[4]That, as we say, was in April 2016. Early in May 2016, for offences of harassment and breach of a restraining order, the appellant was made subject to suspended sentences of imprisonment totalling 10 weeks. Those sentences were suspended for the period of only 6 months, which might not be thought to be a period of challenging length. Nonetheless, the appellant committed further offences so soon thereafter that the suspended sentences were subsequently brought into effect: on 16th September 2016 the appellant was sentenced to a total of 48 weeks' imprisonment, for an offence of failing to comply with the notification requirements in July of that year, for breach of a restraining order in August of that year and for commission of the further offending during the period of suspended sentence which we have mentioned.[5]From that sentence the appellant was released on 24th January 2017. The offence charged in count 1 was committed the very next day. It was in breach of the restraining order that the appellant went to Colchester to meet a friend, Mr King. They met together and then went to Mr King's home for several hours.[6]On the next day, 26th January, the appellant again breached the order. He again went to Colchester to meet Mr King. He stayed at Mr King's home overnight. That was a breach of the restraining order charged in count 2. Moreover because he stayed for more than 12 hours at Mr King's address he committed a separate and distinct offence of breaching the notification requirements by failing to notify the police that he was at an address other than his own.[7]Then on 29th January 2017 the appellant once again visited Mr King in Colchester. He left Mr King's home in the mid-afternoon, commenting that it was too risky for him to come back. But the very next day, 30th January, he yet again went to Colchester to meet Mr King. Those breaches of the restraining order were charged in counts 6 and 7.[8]The learned judge did not think it necessary to obtain a pre-sentence report. We agree. None was necessary then and none is necessary now.[9]In his sentencing remarks the learned judge observed that the court was dealing with breaches of two quite different types of court order. First, an order requiring him to do something, namely the notification requirement which imposed a duty upon him to tell the police of any change of address. Secondly, breach of a protective order which prohibited the appellant from doing certain things. That, of course, being the restraining order. The judge went on to observe that when the appellant was released from prison, he was subject to post-sentence supervision as well as being subject to the restraining order and notification requirements. He described the appellant's conduct in late January as involving flagrant breaches of the orders of the court, with the appellant knowing what he was doing and acting deliberately.[10]So far as the breach of the notification requirement was concerned, there is no specific sentencing guideline. As to the breach of the restraining order, there is presently in force a guideline published some years ago by the Sentencing Guidelines Council.[11]The judge commented that reference to the appellant's background showed a pattern of a persistent and consistent course of conduct of the appellant simply not paying any attention to court orders. He concluded that he could properly deal with all the breaches of the restraining order by imposing concurrent sentences, treating them as arising out of substantially the same series of facts albeit over a period of some 6 days. He regarded count 3 however as a different type of offence, meriting a consecutive sentence. That offence was similarly a deliberate breach of the requirements to which the appellant knew he was subject. It was the third time he had breached notification requirements.[12]The judge, in relation to that offence, on count 3, took the view that the sentence of 20 months' imprisonment would have been appropriate after trial. He reduced that by 25% to reflect the appellant's guilty plea after the pre-trial preparation hearing. Thus the sentence on count 3 was one of 15 months.[13]In relation to the other counts the learned

judge said this:

"I take the view that the persistent nature of the breaches overall would entitle me to set a starting point outside the guideline starting point of 12 months, especially as in the past you have got breaches of restraining orders that go back into your history ..."
[14]In relation to those offences also the judge took a sentence after trial of 20 months, reduced it by 25% to reflect the guilty pleas and so imposed the terms of 15 months' imprisonment.[15]We observe, in passing, that it is not entirely clear what prompted the learned judge to refer to "the guideline starting point of 12 months". That is not a starting point which appears at any point in the table of sentencing guidance applicable to breaches of a restraining order.[16]The grounds of appeal do not seek to argue against the 25% reduction by way of credit for guilty plea. Nor does Mr Donegan, on the appellant's behalf, seek to argue against the principle of consecutive sentencing for count 3. He submits however, that in terms of the sentencing guideline, each breach of the restraining order could properly be regarded as an offence which would be defined in the guideline as "more than one breach involving no contact". For such an offence the guideline indicates a non-custodial sentence, namely the imposition of a medium range community order.[17]Mr Donegan makes the important point that although the appellant breached the restraining order by going to Colchester, there was no allegation that he had made contact with the woman whom the order was primarily intended to protect.[18]In all those circumstances Mr Donegan submits that the concurrent sentences of 15 months for the breaches of the restraining order were in themselves excessive. He further submits that to impose a consecutive sentence of 15 months' imprisonment on count 3 resulted in too high a total sentence.[19]We are grateful to Mr Donegan for his assistance and we have reflected on his submissions. We entirely agree with the learned judge as to the clear pattern of complete disregard on this appellant's part for the orders of the court. It is relevant to note that lengthy prison sentences for past breaches have not deterred him. On the contrary, the first of the present series of the offences was committed on the very day after his release from his last sentence and was quickly followed by further deliberate breaches.[20]We accept the point that there was no allegation of contacting the woman named in the restraining order. Nonetheless, the court cannot simply ignore repeated breaches of court orders. The learned judge was right to take the view that significant custody was required for each of these offences. So far as the sentencing guidelines for breach of the restraining orders are concerned, this was, in our judgment, quite clearly a case in which the judge was entitled to conclude that it would not be in the interests of justice to follow the guideline and to deal with all or any of the breaches by a non-custodial sentence. To do so would simply be to ignore the established pattern of breaching court orders. Thus, in our judgment, a radical departure from the sentencing guideline was permissible.[21]We have reflected upon the structure of the judge's sentencing. Our focus at this stage must, as always, be on the totality of the sentence imposed rather than on the precise structure. Nonetheless we do see some force in Mr Donegan's argument that the facts of count 3 do significantly overlap with the facts of count 2. This is not a situation in which it could be said that by committing the offence in count 2 the appellant necessarily also committed the offence in count 3. He could, to put it shortly, have gone to Colchester in breach of the restraining order but stayed for less than 12 hours and therefore not breached the notification requirement. But we do see, as we have indicated, some force in Mr Donegan's submission that to impose a consecutive term of 15 months' imprisonment in those circumstances was excessive.[22]With some hesitation, we are persuaded that the total sentence here was too long. Nonetheless, we entirely agree with the overall approach of the judge to the breach of court orders and like him we think it inescapable that significant terms of custody must be imposed.[23]In our judgment, the appropriate resolution of this appeal is that the total sentence should be reduced from one of 30 months' imprisonment to one of 2 years' imprisonment. We achieve that resolution in the following way: we quash all of the sentences imposed below, and we substitute for them concurrent terms of 2 years' imprisonment on each of the offences. Thus the total term is reduced, as we have said, from 30 months to 2 years and to that extent the appeal succeeds. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400