McElroy, R (on the application of) v Lewes Combined Court [2014] EWHC 2518 (Admin)

[2014] EWHC 2518 (Admin)Case No CO/2392/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 20 June 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
&
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF MCELROYClaimantv
Between
LEWES COMBINED COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Tear (instructed by Duncan Lewis) appeared for ClaimantMr L Chinweze (instructed by the CPS) appeared for Interested Party for The Defendant did not appear and was not represented
J U D G M E N T

LORD JUSTICE ELIAS:

[1]The claimant was convicted at Eastbourne Magistrates' Court on 24 October 2013 of assault by beating and criminal damage. He was sentenced to a community order. He appealed that conviction to the Lewes Crown Court. The matter was reheard on 19 to 21 May 2014. The appeal was dismissed. He was sentenced by the Crown Court to 6 months' imprisonment for the battery charge and 7 days' imprisonment to run concurrently for the criminal damage offence.[2]He now seeks to challenge the sentence of the Crown Court by way of judicial review. In essence, he submits that the sentence clearly falls so far outside of the broad area of the court's discretion that it ought to be quashed.[3]The factual background can be briefly summarised. On the evening of 27 May 2012 the appellant had an argument with the complainant. She was a woman with whom he had been friendly and he was sharing a chalet with her for the weekend at a holiday park in Sussex. During the argument the applicant pushed Miss Reynolds against a wall and held her by her throat. Later she said she was lifted from the floor in this way. He squeezed her throat with one hand. He then dragged her by her shoulders to the first floor outside. He threw her bag over the balcony to a small grass patch below. He damaged some of her property, in particular a telephone which was worth some £28 and had been brought earlier that weekend. He then grabbed her throat and pushed her backwards over the railings on to the balcony. He threatened to throw her over. She was in fear that that is what he would do. Two members of the public intervened to separate the applicant from the complainant. The reason for the attack, according to the complainant, was that she did not want a sexual relationship to continue.[4]The issue, essentially, for the court was whether these offences had been committed; the applicant denied that they had.[5]In sentencing, the court had regard to the guidelines. These are sentencing guidelines for offences of this nature laid down by the Sentencing Guidelines Council. There are three categories. First, where there is greater harm having regard to the nature of the offence and higher culpability. Greater harm arises where there is injury or fear of injury. That is category one. Category two is where there is either greater harm and lesser culpability or lesser harm and greater culpability and category three is where there is lesser harm and lesser culpability. For category one the starting point is a high level community order and the range is from a low level community order to 26 weeks' imprisonment. This is the maxiumum custodial sentence, but the sentence can be increased by the addition of a fine of up to £5,000. The range for category two is from a fine to a high level community order and for category three it is just a fine.[6]The judge in sentencing must take account of aggravating and mitigating features. The former include the ongoing effect of the attack on the victim. The latter include lack of previous convictions, the fact that it is an isolated incident and the lapse of time since the offence was committed.[7]It is clear from the sentencing remarks that the court considered that this conduct fell within the first category. It displayed, in other words, both a higher level of culpability and greater harm. In our view, given in particular the fact that the complainant was in fear of being thrown over the balcony and has according to her witness statement suffered quite deep psychological harm as a result of this attack, that was plainly a justified conclusion with respect to the harm.[8]As to culpability, one of the factors attracting the higher culpability is where the attack is related to sex, and it can be fairly said, it seems to us, in light of the evidence given by the complainant, that that was the situation here.[9]The judge recognised that there were certain mitigating features. Very importantly, here was man of good character in his mid 50s. There had been a significant delay in proceedings which was not his fault, and the judge accepted that he had lost his reputation, his job (we are told) and also was in danger of losing his property as a consequence of his actions.[10]There was, however, an additional aggravating feature which was identified by the judge, and he called it a significant aggravating factor in the case, namely that throughout the whole proceedings, including after conviction, the appellant had sought to trash the reputation of the complainant. This was done in part by comments in Facebook. The victim impact statement shows that this caused the victim very great distress. Indeed, she has suffered from mental health problems and there has apparently been a suicide attempt, although no doubt that is related to a range of matters.[11]In order to interfere with this sentence the appropriate test we should apply was described by Lord Bingham, the Lord Chief Justice, in the case of Truro Crown Court ex parte Adair [1997] COD 296 where he said this:
"It is clearly established by earlier cases, in particular R v St Albans Crown Court ex parte Cinnamond and R v Croydon Crown Court ex parte Miller, that judicial review did not offer a backdoor means of appeal against the sentences imposed by the Crown Court and appeals from justices. It was nevertheless recognised by those authorities that there came a point at which a penalty was so far outside the reasonable range of penalties as to be indicative of a manifest error of law."
[12]We have considered the submissions in this case. We reject counsel's submission that a custodial sentence was inappropriate. The court was fully entitled to take a serious view of this offending. Nor in our view is it correct to say that the court ought to have suspended the sentence. This was a very unpleasant attack, subsequently combined with a maligning of the character of the complainant which has caused her very serious harm.[13]However, the sentence imposed in this case was the maximum. We do not think, given the mitigating factors, that that could be a proper sentence in all of the circumstances. In particular we focus on the fact that this was the first offence and therefore the first time in custody for a man in his middle years and a professional man too. That is obviously in itself a very serious consequence. We are told that he is in real danger now of losing his home and he has lost his job. There is no doubt that the consequences of this attack have been extremely severe as far as he is concerned.[14]We bear in mind that he was convicted of not only the assault but in addition there was a separate offence of criminal damage, but that was essentially peripheral and did not begin to justify a 6-month sentence, even for the two offences. We consider that a shorter sentence would have sufficed, albeit this was a most unpleasant offence. We use our powers under section 43 of the Senior Courts Act as was recognised could be done in the case of Gatehouse [2001] EWCA Crim 459. We consider that a sentence of 3-month would not have been out of line but we are conscious of the particularly harsh consequences that have been caused in this case as a result of this incident, really turning this man's life upside down. In the circumstances we think that a custodial sentence, although appropriate, should be reduced to 2 months to reflect the mitigating features, the real damage to him and also the consequences of his unlawful conduct.[15]To that extent, therefore, we quash the conviction imposed by the court below and we substitute a sentence of 2 months' imprisonment in place of it:[16]We are told that although an application had been made for legal aid in this matter it has not yet been considered and granted. We have explored whether it is open to us to award costs, which we think in principle ought to be awarded in a case of this kind, from some other source. Insofar as we can understand from the research we have carried out, that is not possible. We are told that there have been difficulties in the applicant providing information to the legal aid authorities because he is in prison. It may be that because this case has come on very speedily, the legal aid authorities have not had a proper opportunity to amass the relevant information to determine whether he should be entitled to legal aid or not. We would only indicate that subject of course to him satisfying the relevant requirements, we think this would in principle be a case where someone should be entitled to legal aid. He had to come to this court to quash a sentence which was, as we have indicated, too high.[17]MR JUSTICE OUSELEY: I agree. The sentence was so excessive as to fall outside of the range reasonably available to a sentencing judge. It was accordingly unlawful and we have therefore exercised our powers to resentence.[18]ME TEAR: My Lords, I am grateful. This was a rolled up hearing, so I would also ask you to grant permission.

LORD JUSTICE ELIAS: Technically, yes, we grant permission and we uphold the application.

[20]ME TEAR: My Lord, I have a draft order and I will forward it to your associates.

LORD JUSTICE ELIAS: If you can agree a draft order and give it to the associate, thank you very much.