England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 June 2010

His Honour Judge Loraine-Smith:

1. On 11 March 2010, at the Crown Court at Leicester, the appellant pleaded guilty to one offence of putting a person in fear of violence by harassment, and on 9 April 2010 he was sentenced by Mr Recorder Aucott to 12 months' imprisonment. A restraining order under section 5 of the Protection from Harassment Act was made for a period of 5 years.
2. The facts of the case were as follows. The complainant, Miss G, had been in what she called an on/off relationship with the appellant for something like 10 years. She said that he was a heavy drinker and that that had caused a strain on their relationship during that time. She said that there had been previous reports to the police for his violent behaviour and there had been one conviction for affray for which he received a conditional discharge for 3 years in 2004. In early October 2009, Miss G and the appellant had been back together for about 8 months. He was not in fact living with her at the time but he spent a number of nights at her house each week and a lot of his property was kept there. She told him that she wanted to split up again but said that there was no rush and that he could have a few days to pack his things and move out. A few days later, on 8 October, Miss G spent the evening at her sister's while the appellant spent the evening at her house drinking lager. She returned and went to bed shortly before 10 o clock in the evening.
3. While she was in her bedroom the appellant sent her a couple of text messages and made a phone call, even though he was only downstairs. At about 11 o clock he opened her bedroom door, asked her if she was awake and said "you know what, I want a row". She said "I am not rowing, I want you to go". When the appellant said he was not going to go, Miss G called for her children. The four children were aged from 10 to 21 years of age. They came and she then tried to leave the house to go to her sister's because she did not want to argue with the appellant. The appellant pulled her by the hair. When her adult daughter, L, intervened he pulled her by the hair as well. Miss G and her daughter broke free. Miss G ran across the road to her sister's home, followed by the appellant. He caught her, again pulled her hair, and pulled her towards the ground. He did the same to L and, in doing so, bashed their heads together before letting them both go and leaving the scene. Miss G went inside her sister's house and called the police. Officers attended soon afterwards. Both Miss G and L said they had suffered no injuries but, as a result of their hair being pulled, their heads felt tighter.
4. The police contacted the appellant and, on 16 October, he attended a police station. He was not arrested. He was interviewed on a voluntary basis. He denied the offences. He was told that he would not be reported for any offences and, accordingly, was not on bail during the subsequent incident.
5. At about 3 o clock in the morning on 14 November 2009, Miss G was at home in bed. The appellant telephoned her and said he needed some money. There was some talk of a debt that might be owed by her to him. She thought he sounded drunk. She tried to placate him by agreeing with him and said that she would sort it out later. There followed a barrage of further telephone calls, initially to her mobile phone. When she turned that off or would not answer, the calls were made to her land line. Miss G continually told him to stop. She then stopped answering both phones.
6. The appellant appeared to believe that Miss G was seeing somebody else. During the calls he said things like "don't put the fucking phone down, I know you're seeing someone else, I am going to fucking strangle you. I ain't bothered about the police, I'm going to kick you to fuck". Whilst the telephone calls continued, Miss G heard a bang at the front door. She saw the appellant outside and woke her daughter who called the police. As the appellant kicked the front door, Miss G tried to calm him down. She was scared that he would assault her if did he manage to break in. When the appellant did stop kicking the door, he punched Miss G with some force but no damage was caused. He then walked off.
7. Police officers attended. Whilst they were at the house the appellant made further telephone calls. One included a comment to the effect of "you ought to get the police involved because tonight will be your worst nightmare". That was heard and recorded by police officers present.
8. At 4.25am the appellant was arrested at his home address. He did not answer any questions when interviewed.
9. When passing sentence, the Recorder described the appellant as a hard working man. He had demonstrated some remorse for his conduct but when in drink he was a brutish and frightening bully. He assumed, wrongly, that the breakdown was not his fault, but he seemed to be coming to an acceptance of that in the pre-sentence report. This, said the Recorder, was a course of terrifying and threatening behaviour, as he intended it to be. The case clearly passed the custody threshold. The fact that he pleaded guilty enabled the court to pass a relatively short sentence of 12 months' imprisonment. Had he not pleaded guilty, the sentence would have been one of 18 months.
10. The appellant is now 41. He had numerous previous convictions when a young man, some of which were for very serious offences of robbery, arson, causing grievous bodily harm, actual bodily harm, and threatening behaviour. But his last conviction was the affray matter back in 2004, to which the court has already referred. The pre-sentence report had recommended a community order with a requirement to attend a domestic abuse program. The Recorder, understandably, felt that these two incidents were too serious for anything other than an immediate custodial sentence, but he then took 18 months as he his starting point before giving credit for the plea.
11. Although undoubtedly very frightening for Miss G and her family, these incidents were not as bad as some that have come before the court and, thankfully, the actual injuries caused were slight. The appellant has not been convicted for any offence for over 5 years and was never found to be in breach of the 3 year conditional discharge imposed in 2004.
12. Today, Miss Johnson, appearing on behalf of the appellant, has provided us with the sentencing guidelines for the Magistrates' Court in cases of harassment. Those indicate that, for deliberate threats, persistent action over a longer period, or with an intention to cause fear of violence, the starting point should be one of 18 weeks' custody with a range of 12 weeks' custody to committal to the Crown Court. Those guidelines were not brought to the Recorder's attention.
13. We consider that his starting point in this case for these offences was too high. We think that the appropriate sentence here was certainly an immediate custodial sentence, that could not be avoided, but we consider that the appropriate sentence was one of 28 weeks' imprisonment. Accordingly, we allow the appeal to that extent.
14. There was no application for leave to appeal the restraining order but that has been raised in court today. We consider that that was wholly appropriate and that will remain.