England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2002] EWCA Crim 2650

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		Neutral Citation Number: [2002] EWCA Crim 2650
		No: 200203609/Y5

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

Tuesday, 5th November 2002

B e f o r e :

LORD JUSTICE POTTER
MR JUSTICE BUTTERFIELD
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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	R E G I N A
	-v-
	ROY KEITH HARLEY

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MR B AINA appeared on behalf of the APPELLANT
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HTML VERSION OF JUDGMENT
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5th November 2002

HIS HONOUR JUDGE PAGET: On 19th April 2002 in the Crown Court at Guildford the appellant pleaded guilty and was sentenced on 31st May 2002 by His Honour Judge Bull QC to 21 months' imprisonment for public nuisance. He appeals against sentence by leave of the single judge.

The case concerns a significant number of obscene telephone calls made by the appellant between 22nd May 2001 and 19th August 2001. Police enquiries centred around two mobile telephones, both of which were traced to the possession of the appellant. In relation to those two telephones 4,845 calls were made to in excess of 1,000 people. The indictment has the names of 45 women and one 13 year old boy. There was a pattern in relation to the calls. Some were silent. Some were explicitly and unpleasantly sexual. One woman received some 18 calls, another some 53 calls, another 40 calls of an unpleasant and explicitly sexual kind. Yet another woman received 63 calls.

Each of those people was affected to a different degree. One, a young girl, was distressed by the silent calls as she happened to be on the verge of taking some important examinations. Another unfortunate woman received a significant number of silent calls, three or four of them, on the day of her wedding, causing her to wonder whether some malicious person was trying in some way to interfere with her wedding.

The appellant was arrested on 21st October at his home. When interviewed, he admitted owning the two telephones and he admitted calling one particular person whose number he had found on the wall of a public lavatory. He said that whilst in Amsterdam he had broken his jaw, as a result of which he was taking medication and he indicated that he had become depressed. He then at that stage elected to make no further comment.

However, on 3rd December he was interviewed again and he admitted telephoning the 45 women named on the indictment, saying that most of the calls were made from his home, or whilst he was in his car. He agreed that he made sounds as if to indicate he was masturbating at the time on occasions. He said there was no sexual gratification for him and he was trying to see what the reaction would be. He said he could not recall whether he called the same numbers back again, but it was plain from the number of calls that the appellant did make a number of repeat calls to the same numbers. Later in his interview he agreed that when a woman answered the call, as opposed to a man, he would save the number on his mobile telephone because he knew that she might answer next time.

In passing sentence His Honour Judge Bull treated the appellant, who is now 32, as a man of good character, which indeed he was. He then accurately summarised the calls and the effect that they have and had on the victims in this case. Some of the women, for instance, were troubled that perhaps this was someone who might know where they lived and might follow them home and their lives were affected in various ways. As the learned judge said that is really the evil of this particular activity. He reached the conclusion that the only sentence that he could pass was one of immediate custody and he passed the sentence already indicated of 21 months.

As far as the appellant is concerned, he was born on 4th April 1970. He did, in fact, have one very minor conviction for a wholly unrelated offence. For that reason he was treated to all intents and purposes as a man of good character.

There was a psychiatric report dated 23rd May 2002, indicating that the appellant developed a moderate depressive episode after sustaining multiple jaw fractures and in his vulnerable state during the depressive episode he developed an addiction to telephone dialling. This had been alleviated, to use the words of the psychiatrist, through recovery from the depressive episode and the gaining of victim empathy. What that meant in practice was that, as the appellant was to say, he had learned by chance from a friend who told him of the effect that calls of a sexual nature were having upon his own wife and that had brought home to the appellant just what this activity does to victims. That apparently was the reason why he ceased these offences, as undoubtedly he did, in August, although he was not traced by the police until October.

There was a pre-sentence report indicating that the offences had occurred in the context of loneliness and self-enforced isolation, low self-esteem and emotional loneliness through lack of intimate relationships exacerbated by his broken jaw and facial disfigurement, leading to what the appellant believed was some kind of breakdown. He eventually admitted that his actions were designed to shock and that he enjoyed the element of power and control involved.

It was the opinion of the writer of that pre-sentence report that, because at that stage the appellant was minimising his actions, there was a high risk of reoffending. However, the psychiatrist reached the conclusion that there was in fact a minimal risk of reoffending, principally because the appellant himself had realised the effect these calls were having and had ceased of his own volition.

There was a medical report before the court referring to the appellant's injury to his jaw and the medication prescribed which had induced depression. There is a prison report before this court which shows that the appellant is making progress.

The grounds of appeal are effectively that the sentence was too long. In giving leave to appeal the single judge drew attention to the length of an inevitable custodial sentence, given that he had stopped offending voluntarily. We do not quarrel in any way with what His Honour Judge Bull said in passing sentence as to the effect which nuisance calls of this kind have on those who receive them. Such activity does require, in our judgment, a significant sentence.

Nevertheless, this case has unusual features: (1) the appellant was of previous good character; (2) he seems to have committed these offences at a time when he was disfigured after an accident in which he broke his jaw and was suffering from clinical depression; (3) the offences were committed over a comparatively short period; (4) he stopped voluntarily it seems after learning by chance what the effect of such offences may be; and (5) the psychiatric report extinguishing that the risk of repetition was minimal.

For all of those reasons, which make this an unusual case, we think that the justice of the case would be met by quashing the original sentence and substituting therefor a sentence of nine months' imprisonment. To that extent this appeal is allowed.