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, 4th December 2009

1. MR JUSTICE EDWARDS-STUART: On 22nd August 2009 in the Taunton Deane and West Somerset Magistrates' Court the appellant pleaded guilty to an offence of witness intimation under section 51(1) of the Criminal Justice and Public Order Act 1994 and was committed for sentence to the Crown Court. However, the Crown subsequently considered that it would be more appropriate to charge the appellant with the offence familiarly known as "revenge" contrary to section 51(2) of 1994 Act, that is say threatening to do an act intended to cause a person to fear harm knowing or believing that that person has given evidence in proceedings for an offence. On 18th September 2009 the appellant then pleaded guilty to that revised offence and was sentenced in the Crown Court at Taunton to 2 years' imprisonment. The appellant appeals by leave of the Single Judge against that sentence on the ground that it was manifestly excessive.
2. The incident which gave rise to this prosecution occurred on 23rd April 2008 at a roundabout in Taunton. The appellant was driving a Transit van when he saw a car driven by a man with whom he had a long running dispute. The appellant swerved and rammed the other car with his van and then smashed its rear windscreen with a baseball bat. He then went for the driver.
3. The incident was observed by another motorist, Mr Bigwood. He took down the number of the van and reported it to the police and the appellant was subsequently charged with affray and dangerous driving. To those offences he pleaded guilty and on 11th March 2009 he was sentenced to 12 months' imprisonment concurrent on each offence.
4. Ten days later, on 21st March 2009, and whilst in prison, the appellant made a call from his cell to Mr Bigwood's business address using a mobile phone. Mr Bigwood happened to be away on holiday when the call was made but on his return the following day he went into his office and he heard the following message on the answer phone: "Hello there. Just a message for Keith Bigwood. Pass this on to him that he should never have made a statement to the police because now my friend is in prison doing twelve months for something he didn't do and Keith Bigwood is in serious fucking trouble. His life is about to slowly get destroyed whilst my friend is still in prison." The number from which this call was made was checked and matched the SIM card found in a mobile phone found in the appellant's cell.
5. The appellant was arrested and made no comment when interviewed. In the light of the appellant's refusal to make any admissions in relation to this telephone call, the police had to arrange the recording of a message made by Mr Bigwood to be analysed by a forensic expert. The expert concluded that the voice of the caller matched that of the appellant. As a result the appellant was charged on 21st August 2009 and, as we have already mentioned, appeared before the magistrates the following day.
6. Mr Bigwood made a witness statement in which he said he was completely shocked when he heard the message and that he believed it was a clear threat intended to cause him some sort of alarm or intimidation. He said he was concerned not only for himself but also for the safety of his family and those employed in his business. However, it is right to say that Mr Bigwood has never made a victim impact statement.
7. In passing sentence the judge, Mr Recorder Still, said this, after referring to the case of MacDonald [2008] EWCA Crim 707, on which the appellant relies and to which we will refer later:

"The serious aspect of this seems to me, as I have indicated to your counsel, that this was done not in hot blood but in cold blood ten days after the event. It was done trying to disguise the fact that it came from you in the context of a friend ringing on your behalf. The nature of what was left on the answer-phone was a threat which was that he would be 'in serious fucking trouble and his life was about to slowly get destroyed while my friend was still in prison.' The nature of those words are ominous and sinister and frightening. I am not surprised that Mr Bigwood says in his statement that he was concerned not only for himself but his family safety and the fact it came to his business address, that he was concerned that possibly those words spelt out a threat to the business.

Those are the reasons why I am afraid I cannot go along with your counsel's submission to me that this is the sort of case where a prison sentence should be imposed to mark the gravity of the offence but suspended. It is perfectly obvious that you have made an effort to rehabilitate yourself with the gardening work, the landscaping work that you have undertaken and I have with interest and sympathy the kind words that are said about you by others, but at the same time I have just got to look at what you have done and what you have done, I hope I have made crystal clear, is serious, very serious indeed and the word has got to go out from the courts that this sort of thing which is prevalent is going to be stamped on and stamped on hard by the courts. It seems to me that putting all the good things that can be put in the balance on one side against the gravity of the offence on the other, that a minimum sentence that I can impose in this case is one of two years' imprisonment and that is the sentence that I impose."

8. The Recorder's remarks were, in our view, entirely appropriate. We agree with him also when he said it is a very serious matter for anyone to attempt to interfere with a witness who has given evidence, or who may be about to give evidence. This court also wishes to make it absolutely clear that this sort of interference with the due process of law will not be tolerated.
9. At the time when this offence was committed the appellant was 40. He does have a very substantial and persistent record of offending over the past 20 years or so, including several offences of violence, albeit not of the most serious sort. He has numerous convictions for theft. However, it does seem to us that during the past 5 years the appellant has run a successful gardening business: there are three very good references from those who had engaged him in during that period.
10. In his address to us on behalf of the appellant Mr Boyce has referred us in his written submissions to a case of this court, a decision in R v MacDonald [2008] EWCA Crim 707. In that case the defendant who was aged 23 had been convicted of affray following a trial in the Crown Court and was sentenced to 12 months' imprisonment. About 2 months after his release from prison, he came across a witness in the case in a supermarket. The witness was shopping with his two teenage sons, one of whom was approached by the defendant who said: "You're part of the Avery family." The defendant then spotted the victim and threatened him, saying he was going to have him outside and was going to kill him. A person who was with the defendant tried to intervene and the witness continued shopping. However the defendant found him again, repeated his threat and then punched him in the head. The victim made a victim impact statement indicating that the incident had made a profound impression on him and that there were long-lasting effects. The defendant was sentenced to 4 years' imprisonment.
11. After stating that the maximum sentence of this offence was 5 years, this court considered that an appropriate starting point in that case would have been 4 years. That should then have been reduced by one-third for the defendant to plead guilty leading to a sentence of two-and-a-half years. The sentence was quashed and reduced to that figure.
12. Mr Boyce submits that the case of MacDonald was a much more serious case than this one. He therefore submits that the starting point in this case was too high. Amongst other things he points out the following features. First, the appellant had been on bail for 10 months prior to sentence without any attempts at intimidation allegation. Second, there was only one threat. A telephone call, 55 seconds long was made 11 days after the sentence was passed on the appellant for the driving incident. Third, the mobile phone from which the call was made remained in the appellant's possession for over 2 weeks before it was seized by the prison authorities, but no more messages were sent to Mr Bigwood. Fourth, no violence was used, and fifth, he points out that Mr Bigwood had declined to make a victim impact statement. He observes also that because there was a guilty plea Mr Bigwood never had to go through the ordeal of giving evidence in court.
13. In addition, it is said on the appellant's behalf he pleaded guilty before the magistrates at the first available opportunity, but given that the SIM card was found in the telephone that was in his possession, it might be thought that to give a full one-third reduction for the guilty plea was generous. But it appears that was what the Recorder indicated that he would do and we are not minded to approach the matter differently.
14. Mr Boyce in his written submissions has also drawn our submission to two other matters by way of mitigation: the fact that the appellant wrote a letter to Mr Bigwood apologising for what he had done, and also that the appellant has had a very difficult time in prison being intimidated by other inmates.
15. For our part, we readily accept that the use of violence in the case of MacDonald, particularly when used in front of the victim's children, was an aggravating feature that is absent in this case. Nevertheless, the power of a threat left on a telephone answering machine should not be underestimated. It can cause enormous worry and alarm, particularly when it appears to come from an unknown caller.
16. How it really affected the victim in this case, Mr Bigwood, is difficult to know without a victim impact statement, but a person in the position of the appellant will not know how seriously the victim may take the threat or what damage it may do.
17. In the light of the decision of this court in MacDonald, we consider that the circumstances of this offence justified a starting point of between two-and-a-half and 3 years, with a reduction for the guilty plea of between one-quarter and a third. It was manifestly not a case where any sentence of imprisonment should have been suspended, and immediate custody was clearly justified for an offence of this seriousness.
18. The Recorder seems to have taken a starting point of 3 years and then made a reduction of one third for the guilty plea, thereby arriving at a sentence of 2 years. It may be that some judges might have taken a slightly lower starting point, but we consider that this sentence was certainly not manifestly excessive. Accordingly this appeal must be dismissed.