England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 10 July 2009

1. MR JUSTICE FLAUX: On 14th April 2009 this appellant, who is 23 years old, appeared at Preston Crown Court and pleaded guilty to a count of putting a person in fear of violence by harassment, contrary to section 4 of the Protection from Harassment Act 1997. No evidence was offered in relation to a second count of having an article with a blade or point and a not guilty verdict was recorded. On 15th May 2009 he was sentenced by Mr Recorder Murray to 12 months' imprisonment for the harassment and one month's imprisonment for breach of a conditional discharge in relation to criminal damage, to be served consecutively. He appeals against sentence with the leave of the single judge.
2. The facts of the matter are as follows. The appellant had been in a relationship with the complainant for some four years until a few months before the incident when the relationship ended and they stopped living together. There were two children of the relationship.
3. At about 1.00 in the morning on 28th December 2008 the complainant and her children were upstairs in bed at her house. She was woken up by the appellant banging on her front door. He was extremely drunk. He shouted: "You slag, get the door open." She went downstairs and told him to leave. He asked who she had in her bedroom and she said, "No one" and that he could check if he wanted to. He then left because their son came downstairs crying. She locked the door, put the chain on and went back to bed.
4. He returned a few moments later, banging on the door and shouting: "Get down here you fucking slag." She opened the bedroom window and told him to go. He picked up a brick and said: "I'll put this through the window if you don't let me in." She 'phoned the police whilst he still continued to threaten her. She saw him opening a downstairs window and ran down while still on the telephone and found he was in the house. Knowing that the police were coming he locked the door from the inside and took the keys. There was then a scuffle. The police arrived but the complainant said she did not wish to pursue the matter. The police officers left but they were sufficiently concerned that they remained in the area.
5. About 5 minutes later the complainant heard a noise in the back garden. The appellant entered the living room where she was sitting down on the telephone. He shouted: "Who are you on the phone to?" She put the phone down and saw that he had a knife in one hand and a beer bottle in the other. A violent and unpleasant altercation ensued in which he called her a slag. He said: "I could fucking kill you this time if I wanted. I could kill you right now." He threw beer over her and spat in her face, pushing her back down when she tried to stand up and slapping her face. He threatened her with the bottle, swinging it round. When she asked what he was going to do with it he said: "I'll show you." She kicked him and then he dragged her around the floor, saying: "You know what I could do to you now?" At that point he stabbed the television with the knife, the blade of which broke inside the television.
6. The police officers had heard a commotion and returned. They looked through a window and saw the end of the incident. They could see that the complainant was distressed. They entered the house and arrested the appellant. The complainant suffered colouring beneath her left eye and a sore chin. With the assistance of the domestic violence unit she was moved to a new address and although there is contact for the children, there has been no direct contact between the appellant and the complainant.
7. The appellant has a number of previous convictions, mainly for theft, burglary and criminal damage. Indeed, it was for breach of a conditional discharge in October 2008 imposed for an offence of criminal damage, that he was sentenced to the one month's imprisonment consecutive. Most relevantly he had a conviction for an assault occasioning actual bodily harm for which he was sentenced to 12 months in a young offender institution in February 2004.
8. In sentencing the appellant, the learned Recorder said that how he had treated the complainant was a disgrace and it was astonishing that she was not more seriously injured. He referred to the guidelines in regard to such offences, evidently a reference to the decision of this court in Liddle and Hayes [2000] 1 Cr.App.R (S) 131. He said that the offence was a particularly bad and sustained example of a section 4 offence, although described as one-off. He thought that only a sentence of immediate imprisonment for 12 months was appropriate.
9. Miss Sharon Watson, who appears for the appellant, referred us in detail in the skeleton argument which she helpfully submitted to the court yesterday to Liddle and Hayes. In that case, which was of course a section 2 case of pursuing a course of harassment and did not involve the more serious offence under section 4 which involves violence, this court set out by way of guidance on sentencing for offences under the Act a number of considerations. They said this:

" first, is the offence a section 2 or a section 4 offence? (2) is there a history of disobedience to court orders in the past, whether they are orders under the act or civil orders? Thirdly, the seriousness of the defendant's conduct, which can of course range from actual violence through to threats, down to letters, which of course may even express affection rather than any wish to harm the victim. Fourthly, is there persistent misconduct by the defendant or a solitary instance of misbehaviour? Fifthly, the effect upon the victim, whether physical or psychological?

Question: does the victim require protection? Further question: what is the level of risk posed by the defendant? Usually that risk is to the victim, but it may of course include the children or family of the victim.

Sixthly, the mental health of the offender, and a sentencer should devote his attention to whether the defendant is willing to undergo treatment or have the necessary help from the probation service which is readily available under special schemes. Seventhly, what is the offender's reaction to the court proceedings? First, is there a plea of guilty? Secondly, is there remorse? Thirdly, is there recognition of the need for help? A range of sentences are obviously available for the court. We would think that for a first offence a short sharp sentence may be appropriate, though much will depend on the factors of repetition and breach of court orders and the nature of the misconduct. Obviously, the facts of each case vary and the facts of any particular case may require a longer sentence."

10. Miss Watson relies on the reference to a "short sharp sentence" being appropriate for a first offence. She submits that the learned Recorder failed to have proper regard to the considerations set out by the court in that case. She contends that the length of sentence was too long and it should in any event have been suspended. In particular she submitted that the learned Recorder had had insufficient regard to the following matters: First, that this was an isolated incident. Although the police had been called out previously on a report of a verbal argument between the couple, there had been no history of violence by the appellant against the complainant. Secondly, although he had a previous conviction for violence it was against a male and did not involve the complainant. Thirdly, there was no victim impact statement, so no evidence of any lasting physical or psychological effect on the complainant. Fourthly, he had complied with the stringent bail conditions requiring that he had no direct contact with the complainant and there was no history of disobedience to court orders in the past. Fifthly, he had pleaded guilty at the PCMH and had shown signs of remorse. Sixthly, he was anxious to engage with professional agencies to ensure the behaviour was not repeated, being willing to attend the domestic violence programme. He was concerned to receive support for the sake of his children. Taking those matters together by reference to the considerations in Liddle and Hayes, Miss Watson submits that the only aggravating feature here was the use of actual violence while in possession of a knife. Accordingly at most the sentence should have been a short custodial one.
11. Attractively though these submissions were put, we cannot accept them. It is important to have well in mind the point made at the end of the passage quoted from Liddle and Hayes that the facts of each case vary and the facts of any particular case may require a longer sentence. We are not sure that the court in that case can really have had in mind that where there was a section 4 offence involving violence a short sharp sentence was appropriate. However, whatever the position was in that case, this case did have two aggravating features which seem to us to justify an immediate custodial sentence of greater length than might otherwise have been the case. First, although there was no history of violence against the complainant, the appellant was no stranger to violence having served a period in custody for a section 47 assault and having committed a number of offences of criminal damage, indicative of an inability to keep his temper. Secondly, although counsel seeks to categorise this as an isolated incident, we agree with the learned Recorder that it was a particularly bad and sustained example of this type of offence involving violence and foul language to a young woman.
12. The presence of those aggravating features is also the answer to the alternative submission that the court should in effect approach the matter in the same way as a summary offence of common assault for which the maximum sentence would be six months' imprisonment. Counsel submitted that the injuries inflicted were consistent with common assault and that the matter was only charged under the Harassment Act because the appellant had visited the complainant, argued with her and then left only to return shortly thereafter and assault her. We cannot accept that this offence should be treated as if it were some relatively minor assault. It was a nasty, violent attack with the aggravating features we have identified, which is no doubt why it was charged as an offence under section 4 of the Act rather than as a common assault.
13. Notwithstanding all the matters put forward by Miss Watson in mitigation, those aggravating features alone seem to us to justify the sentence of 12 months' imprisonment. There is nothing in the suggestion that the learned Recorder should not have imposed a consecutive sentence for the breach of the conditional discharge. That was another aggravating feature of this case which justified the additional term. This appeal is dismissed.