Mahon, R v [2018] EWCA Crim 959

No: 201704457/A4

[2018] EWCA Crim 959

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 19 April 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE SIMON

MR JUSTICE EDIS

Venue THE RECORDER OF LEEDS

HIS HONOUR JUDGE COLLIER QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

TERRY MAHON

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr M Pardoe appeared for Appellant

J U D G M E N T

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[1]MR JUSTICE EDIS: Terry Mahon is now 48 years old. On 4 September 2017, having earlier pleaded guilty at a stage which entitled him to full credit for his pleas, he was sentenced under section 226A of the Criminal Justice Act 2003 to a determinate sentence of 20 years, comprising a total custodial term of 15 years and an extension period of five years, concurrently for three offences of robbery. Concurrent terms of six years' imprisonment were imposed for two counts of burglary in the home involving encountering the occupants. Other orders were made on which nothing now turns. He appeals against that sentence by leave of the single judge who said that it was arguable that the apparent starting point for the assessment of the custodial term before reduction for plea of 22½ years was too high. Mr Pardoe in his clear submissions accepts that that is the only point on this appeal.

[2]The facts of these cases require some careful consideration. On 9 May 2017 the appellant was released having served a long sentence of imprisonment. On 11 May 2017, Mr and Mrs Boud were at home at about 10.15 in the evening. Mrs Boud was 79 years old and her husband was 82. They were getting ready for bed. Mrs Boud was putting on her nightie.

[3]The appellant rang the doorbell. Mr Boud opened the door. He was rather worried to be doing so because of the time of night. The appellant said that he had been asked by the police to come and tell them that someone had been trying to get into their house. Mr Boud knew that this was not true and he asked the appellant to leave. He picked up the phone to try to call the police. Mrs Boud came downstairs and saw this part of the event and described the appellant as "becoming electric". He was insisting on coming into the house and pushed past Mr Boud. He was insisting that he would show them where this person had been trying to get into their house. He had a small screwdriver and was saying that he needed to look at the windows. He was very angry. He was displaying, they said, some sort of pleasure about having got into their house but they thought he did not really have a very clear idea of exactly what he wanted to do. Plainly they were very alarmed by his intrusion into their home.

[4]Mr Boud, 82 years old as he was at the time, then hit the appellant to the jaw in order to try to get him out of the house. This made the appellant furious and he threw Mr Boud to the floor. Mr Boud tried to get up but he was pushed down at least twice, and at that point the appellant started making threats. He said he would tie him up (although he did not actually do that). Mrs Boud wanted to go to the lavatory but he would not let her and she was so frightened that she soiled herself.

[5]At that stage he was saying he wanted to hurt them and he picked up a butter knife from the table to add force to that threat. He said that because Mr Boud had hit him they now owed him £100 and he demanded £100. Mrs Boud had £100 in £10 notes and she went to get it and gave it to him but he rejected it, saying that he wanted his money in £20 notes. So she got £100 in £20 note and in the end he took £400 from them. He told them that they should give him 20 minutes to get clear but they called the police. Mrs Boud had also been pushed and grabbed in a sort of bear hug by the appellant during this incident. No one was physically injured but Mr Boud was genuinely worried that he would be killed or that he would be mutilated and Mrs Boud said she was worried, frightened and puzzled by the incident. The first two counts of robbery reflected these events.

[6]Two days later, on 13 May 2017, one of the offences of burglary was committed, following those two offences of robbery which we have just described. Mrs Vali was 63 at the time and was at home in her flat at 10 o'clock in the evening. She was Skyping her sister and she did not hear that the appellant was ringing her doorbell until her sister alerted her to this fact - that was because she had some headphones on. She went to open the door and there was the appellant, saying that somebody had had their bag stolen and he was on the lookout for the police. He came in and started to check her house. Mrs Vali's sister was still on Skype and she became worried about that time, becoming aware of what was going on. She (the sister) spoke to the appellant on the phone and he said he was doing some security checks. Both women were worried at this stage. The applicant went off to Mrs Vali's bedroom to look around, searched the living room, found her handbag and said he needed to check it for cash. He asked her to step outside the property to see whether the police had arrived, and she did and he insisted when she came back that he should check over the windows. He then left. Mrs Vali was very shaken but relieved that he had gone, wondering what on earth had just happened. She did not realise at that stage that anything had been taken. But the appellant went to a restaurant not far off and the staff there saw that he had a handbag with a number of purses with him. They approached him and questioned him about it, and he said that the purses belonged to his sister, which they thought made no sense at all. They retained the purses and he left without them. Inside one of them was a prescription belonging to Mrs Vali so the police were able, having been contacted by the restaurant staff, to trace her and restore her property to her.

[7]Two days later came the third offence of robbery. Ronald Perry was 90 years old and lived alone. He was at home. He is a vulnerable man and had a lifeline alarm installed in his living room and bedroom so that he could call assistance if he needed it. The appellant had been to the house the previous day and said that he was a part of Neighbourhood Watch but then walked away. It was at 5 o'clock in the morning on 15th May when Mr Perry was in bed that he heard his doorbell being rung. He went to the door to see who it was and the appellant who was there said he was a detective sergeant. This caused Mr Perry to open the door. The appellant walked in, looked around the property. Mr Perry was obviously suspicious and worried. He went into the bedroom and demanded £100, which Mr Perry said he did not have. The appellant then said he would tie up Mr Perry and do him harm if he did not get the money. Mr Perry asked him if he was a robber and the appellant said that he was and that he had been to prison many times. He then attacked Mr Perry by strangling him. He stopped and started searching the property again. He found £200 in the flat and asked for Mr Perry's bank card. He then put his hand around Mr Perry's neck again and said that he would squeeze it until he was told where there was more cash. He said he would not tie him up if Mr Perry got him more cash, but carried on searching for cash and threatening to do harm. He was behaving in an erratic and alarming way. He then pushed Mr Perry to the floor and kicked him twice, asking for money.

[8]Eventually Mr Perry gave in and told the appellant where the money could be found. The appellant took it and left. He had subjected this 90-year-old man to this terrifying ordeal for 45 minutes by the time he left. Mr Perry did not have serious physical injuries, but he did have bruises and cuts and found it difficult to get off the floor, so had to drag himself along to the front door to make sure it was shut. Then having satisfied himself that he was safe, he went and pressed his alarm.

[9]The last offence was committed about 15 hours later at 8 o'clock in the evening on the same day. It was an offence of burglary. Gloria Spring was 71 years old and was at home. She heard constant knocking and ringing at the front door. She answered it and there was the appellant, saying this time that a neighbour's house had been smashed up and that he was working with the police and that her upstairs window had been smashed. He pushed his way into the house and started looking at the back windows. She was suspicious. She knew her house was undamaged and she asked him to leave. At that point he said he would write down his name and he wrote it down, calling himself in this document "Martin Stokes". After that he left without apparently having taken anything with him. It was that piece of paper which led to his arrest. His fingerprints were found on it when it was subsequently examined, so that on 17th May he was arrested. He was interviewed and answered no comment.

[10]There were victim personal statements before Crown Court and they are also before us from Mr and Mrs Boud, Mrs Valli Mr Perry and Miss Spring. These documents are unsurprising. They explain the real trauma which results from an alarming, threatening, unwanted intrusion into the home of an elderly person. It is understandable that people who have been subjected to such an attack are unlikely to feel safe in their homes again and that it will have a continuing and permanent effect on their sense of safety and wellbeing. These are the natural and foreseeable consequences of offending of this kind. The appellant knows this because it has been explained to him no doubt by courts on many occasions previously. He has 16 previous convictions for 70 offences between July 1982 and 9th May 2014. He has convictions for 29 offences of burglary and theft from dwellings, 12 convictions for burglary with intent to steal from dwellings and one offence of attempted robbery. He has convictions for conspiracy to steal, robbery, handling and assault occasioning actual bodily harm. All of this resulted in him serving custodial sentences of four years in 1989, three-and-a-half years in 1994, nine years in 1996, and eight years in 2003. In February 2010 he was sentenced to a further sentence of seven-and-a-half years' imprisonment. In May 2014 he received a further sentence of four years to run concurrently with that last sentence. This no doubt also involved a licence recall and the result of all that was that he was released right at the end of the licence period from that sentence, just days before he committed the present spate of offending. He appears to have served almost all of the seven-and-a-half year term imposed in February 2010. These substantial custodial sentences were all imposed for offences of burglary of dwellings and robbery. He has a long history of preying on elderly victims by adopting precisely the same method as he was to use on the victims in the present case.

[11]The judge had before him a psychiatric report which said that the appellant accepted that he targeted elderly, vulnerable individuals and assumed false identities with a view to committing offences of dishonesty. He frankly told the doctor that in addition to those offences for which he had been convicted in the past, he had committed countless further identical offences.

[12]The doctor concluded that he was not suffering from a mental disorder of a nature or degree that would make it appropriate for him to be detained in hospital for medical treatment. The doctor concluded that it was reasonable to consider that he posed a high risk of similar offending if he were in the community at this point.

[13]The judge referred to the history of past offending which included, as we have noted, multiple events when he has posed as a police officer or some other figure of authority to gain access to the homes of the elderly and vulnerable and the judge observed that in consequence he has spent 35 years of his life in custody. The judge also observed that while on licence within three days of his release he started offending again in exactly the same way.

[14]The judge found that he is dangerous for the purposes of the dangerous regime in the 2003 Criminal Justice Act. There is no challenge to that finding on this appeal and it was plainly well-founded.

[15]Mr Pardoe's submissions orally and set out in his grounds of appeal come to three points. First, he says that the judge did not give adequate consideration to the guideline; secondly, he said that the starting point was too high; and thirdly, he said that the sentence on the offences of robbery (the extended sentence) was not wrong in principle but the custodial term was manifestly excessive. Discussion

[16]As we have said, in our judgment the extended determinate sentence was correctly imposed and the finding that this appellant is dangerous for the purposes of the statutory scheme is unassailable. The only question is the starting point before plea discount of 22½ years. The judge did not, it is true, expressly refer to the relevant robbery or burglary guidelines which deal with offences of robbery and burglary respectively committed within the home when they involve encountering the occupants of that home.

[17]In our judgment, even if he had, he would have been unable to derive the answer to this case by a simple application of the guideline. This case is highly unusual. It is an extreme example of a man who offends serially and regardless of any attempt that the court might make to discourage him or deter him from doing so. It is not unreasonable to conclude that this appellant appears to be incapable of reform. The history which we have set out reveals a compulsion to offend which is plainly irresistible. The sentence of imprisonment in this case is not being imposed with any real expectation of rehabilitation.

[18]The guidelines do not purport to provide directly for cases as extreme as this one, in our judgment. The court was therefore required to assess the seriousness of the offending by reference to the culpability and the harm caused or which might foreseeably have been caused. Plainly these cases all involved high culpability and high harm. We have referred already to the consequence on elderly people of such offending and, whether or not such extreme consequences have occurred in any individual case in the cases before us, it is foreseeable that such harm might very likely have been caused. It therefore is a high harm case.

[19]In carrying out an exercise of this kind the court is required to comply with section 142 of the Criminal

Justice Act 2003, which provides:

"(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing— (a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences."

[20]We have already observed that in this case the sentencing judge would be entitled to conclude that his sentence was unlikely to achieve reform or rehabilitation and that the principal considerations which governed it were those set out in subsection 1(a) and (d), namely the punishment of the offender and the protection of the public.

[21]There is no doubt that 22½ years' imprisonment is a sentence which implies very serious criminality. It is at the top end of the range of determinate sentences which might be imposed for offending where no lethal or potentially lethal force has been used. The question for us is whether it is manifestly excessive on the facts of this case.

[22]It was certainly open to the judge to regard this serious case as requiring a total sentence entirely outwith the normal range for robberies in the home and burglaries of this kind. That is because of the particular nature of this appellant and his truly extraordinary history of offending. That history means that the overwhelming probability is that immediately on release, whenever that might happen, he will simply do it again, as often as he can, until he is finally arrested again having caused who knows what further damage. The extended licence period operates as some protection, although this applicant committed these offences while on licence.

[23]Having come to that view, there are in our judgment no guidelines which prescribe the proper level of sentencing. The sentence can only be determined by the application of the judge's sense of what is proportionate and in making that assessment, as we have said, he is entitled and required to consider the protection of the public.

[24]On appeal, we must carry out the same exercise which inevitably produces a range of different answers which different judges might produce and our function is to decide whether the judge's answer was within the proper range. In our judgment, in this extreme case, this was not in that sense a manifestly excessive sentence. It was, we are prepared to accept, at the top of the available range, but the consideration of the statutory purposes of sentencing and in particular the two purposes to which we have referred as the dominant factors in this exercise, in our judgment, means that it cannot be said that it was above the permissible range and for that reason this appeal must be dismissed. Epiq Europe Ltd 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 Email: rcj@epiqglobal.co.uk