England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		31 August 2006

Thursday 31 August 2006

LORD JUSTICE RICHARDS: I will ask Mr Justice Jack to give the judgment of the court.

MR JUSTICE JACK:

1. On 12 June 2006, following pleas of guilty on re-arraignment on 10 April 2006, the applicant Wayne Picken was sentenced to two years' imprisonment for putting a person in fear of violence through harassment, and to three months' imprisonment concurrent for common assault. No separate penalty was imposed for the breach of a community order. A Restraining Order was made for five years pursuant to section 5 of the Protection from Harassment Act 1997 restraining the applicant from (a) contacting Susie Wilson directly or indirectly and (b) going within 100 yards of 26 Lupton Walk, Sheffield.
2. 26 Lupton Walk, Sheffield was and is the home of Susie Wilson who had been the partner of the applicant.
3. The application for leave to appeal against sentence and the Restraining Order has been referred to the court by the Registrar.
4. The facts as opened by the prosecution were as follows. The complainant, Miss Wilson, was the applicant's partner. They lived at 26 Lupton Walk, Sheffield. Miss Wilson described the relationship as turbulent, characterised by incidents of violence when the applicant abused alcohol.
5. At around midnight on Saturday 4 February 2006 Miss Wilson was at home alone, the applicant having gone out earlier. He returned home escorted by the police. He was drunk and in a confrontational mood. When the police had gone he began to argue with her. He accused her of not loving him and asked her what he had done wrong. She replied that he was drunk and that she simply wanted to sleep, she having worked a twelve hour shift. The applicant then became aggressive and Miss Wilson began to feel frightened. He threatened to kill her. He obtained a bread knife from the kitchen and threatened to cut himself. He then picked up another sharper knife and threatened to kill her. When she tried to leave, he pinned her against the wall. She felt very threatened and frightened. She was shaking and pleaded with him not to hurt her. She was convinced that the applicant was going to kill her. The applicant dropped both knives and she was abe to kick them away. He then obtained another knife, put it to his own stomach and threatened to kill himself. He asked Miss Wilson, who is diabetic, where her insulin pen was. She went to bed. Shortly after five o'clock the next morning she found the applicant in the living room. He was unconscious on the sofa, having overdosed on her insulin. He was taken to hospital, where he remained for two days.
6. On Tuesday 7 February Miss Wilson returned home at about 11pm. She found the front door open. She called out, but the applicant was not there. He returned about twenty minutes later. He had an injury to his lip and was clearly drunk. He shouted at Miss Wilson, asking if she was mad at him. She said that she was angry with him because he had been drinking, having promised that he would not. The applicant asked her if she wanted to punch him. She said that she did not and that she was going out. He then took her keys and threw them into the kitchen. He told her that she was going nowhere. He pushed her onto the sofa. As she tried to calm him, he repeatedly threatened to kill her. He took a bread knife with a six-inch serrated blade from the kitchen and told her that he was going to stab her. He walked around the room and then returned to the kitchen. She saw this as an opportunity to leave, but he blocked her exit. He pushed her back onto the sofa and punched her to the side of her face. He told Miss Wilson that she was not going anywhere, and made threats to smash up the flat. She again tried to leave but was stopped. He had two knives and said that he was going to stab her. She tried to calm him. After numerous requests he handed over the knives, apologised and professed his love for her. When he went to the toilet she escaped and contacted the police.
7. Shortly after midnight the applicant was arrested. When interviewed he made no comment. Miss Wilson had reddening and swelling to her left eye, for which no treatment was sought.
8. The applicant pleaded guilty on the basis that on 4 February there had been a verbal argument which involved him using threatening words with no intention to carry out such threats. He had picked up a knife, waved it around and placed it down with no intention of using it at any stage. As to the 17th February, during the argument he slapped Miss Wilson once with the back of his hand. He accepted that he gestured with a knife, but he had no intention of using the knife at any stage.
9. The facts lying behind the breach of the community order were these. On 24 December 2005 the applicant had caused damage, which cost £50 to repair, to the front door of 27 Lupton Walk, Sheffield. That is the house next door to Miss Wilson. He had been sentenced to a community order by the magistrates with supervision for nine months.
10. The applicant was born on 26 April 1965. He had appeared before the courts on 43 previous occasions for 59 offences. They included four offences of assault occasioning actual bodily harm, three of common assault, one of wounding contrary to section 20 of the Offences against the Person Act 1861, and he had been previously made subject to a restraining order under the Harassment Act. There were also one offence of affray, one of threatening behaviour and one of assaulting an officer. In short, the applicant had on a number of occasions previously put persons in fear of violence. He had received a prison sentence on two of them.
11. The pre-sentence report indicated that the applicant did not accept responsibility for controlling his use of alcohol. He used it to avoid the reality of his situation. He sought to minimise the impact of his behaviour and to a certain extent blamed Miss Wilson for provoking him. He had stated that he had ended the relationship and wished to have no further contact with Miss Wilson, and intended to move from Sheffield. He was also seeking a residential alcohol placement when released from custody and had engaged with the CARAT team in prison. The report stated that there was a high risk of re-offending. The applicant recognised that he was unable fully to control his behaviour in drink. Until he had alternative coping strategies he would be susceptible to alcoholic binges which would ultimately lead to further offending. It stated that previous violent offences raised the concerns over the risk he posed of causing serious harm.
12. A psychological report stated that the applicant was reactive, a big, loud individual, physical and with a low threshold of tolerance. His impulsivity, self-confessed temper and mood, history of reactivity, occasional confused thinking and vagueness supported the possible value of a neuro-psychological assessment.
13. There was a letter before the court from the applicant in which he expressed his remorse. After 26 years he now accepted that he was an alcoholic and wanted help.
14. In considering the sentence of two years' imprisonment passed by the judge we have borne in mind the guidance given by this court in R v Liddle and Haynes [1999] 3 All ER 816, [2000] 1 Cr App R(S) 131. In that case seven factors were listed for consideration by the court. It was also suggested that for a first offence a short, sharp sentence might be appropriate, with fifteen months on a guilty plea being appropriate for a second offence. However, the two cases there before the court did not involve violence, but breaches of previously made restraining orders. So in those two important respects they were different to the present case.
15. The case before us has to be considered on the basis of the applicant's plea which was not questioned in the court below. That does not mean that the statement of Miss Wilson must be disregarded. Far from it. It must be disregarded only where it is inconsistent with the basis of the plea, and it may be relied upon as to the effect of the applicant's conduct upon her. This was a first offence under the Act, though there were two incidents. The police were not involved until after the second. The applicant's problem is his heavy drinking. There was actual violence which caused minor injury, and on both occasions his partner was considerably frightened by a very real fear of injury if not of death. That is how she reacted to his conduct, and it was a wholly reasonable reaction. The offences were committed during the currency of a community order made for drunkenly damaging a neighbour's door. We have already referred to the applicant's bad record, including offences where he has put people in fear of violence or has actually used violence.
16. We have concluded that in the circumstances of the case the sentence was perhaps severe, but it was not excessive. The applicant needed to understood that his drunken violence was unacceptable and would be punished.
17. The restraining order made under section 5 of the Act was made in the face of the statement of Miss Arshad who represented the applicant on sentence, as she has before us, that Miss Wilson had visited the applicant in prison shortly before his appearance for sentence and had told him that she was willing for him to move back into their home on his release. Those were Miss Arshad's instructions from the applicant. There was nothing to confirm that. As we have said, it is stated in the pre-sentence report that the applicant had said that he wished to have no further contact with Miss Wilson and intended to move away. When the judge made the order he said that some women needed to be protected from themselves. He said:

"It is no answer to the making of such an order that she may not want it to be made. Indeed,in my judgment it is a reason for making the order."

The judge had no information coming from the prosecution as to whether Miss Wilson wanted a restraining order to be made or not. Very often the police will have spoken to the victim of the offence and will have raised the question of a restraining order. That does not seem to have occurred in this case. The order plainly has a considerable effect upon Miss Wilson as well as upon the applicant. If she does indeed wish to continue her relationship with the applicant, then it prevents her from doing so. In our view the judge should not have made an order without finding out what Miss Wilson's position was. If he had been satisfied that she wished to continue relations with the applicant, then it would have been inappropriate for him to have made the order. It was not for him to decide that she should not do so. We consider that he should have adjourned the question of the restraining order so that the police could speak to Miss Wilson. In the circumstances we consider that the order should not have been made. We do not think it appropriate to leave the order in place and to leave it to Miss Wilson to make an application to have the order discharged pursuant to section 5 of the Act. The conclusion we have come to therefore is that the order must be set aside. To that extent we will grant leave to appeal and we will allow the appeal setting aside the order. The appellant (as he becomes) is not present today. We have been informed that he is content that we should deal with the appeal in his absence.

LORD JUSTICE RICHARDS: So leave to appeal is refused in relation to the custodial sentence, but leave is granted and the appeal succeeds as indicated in relation to the restraining order.