England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 1 December 2011

1. MR JUSTICE SIMON: On 30th September 2011, the applicants each pleaded guilty to doing an act tending and intended to pervert the course of justice. On 4th November Natalie Cerrone and Nicola East were each sentenced to four months' imprisonment and Rachael East was sentenced to six months' imprisonment. The applications for leave to appeal against sentence have been referred to the full court by the Registrar and we grant leave. A co-defendant, Benjamin Rose, also pleaded guilty to the same charge and was sentenced to eight months' imprisonment and two months of a suspended sentence order was activated.
2. In the early hours of 13th March 2011 a man named Paul Naylor was assaulted by Zubair Akhtar on Bowfield Road in the Firth Park area of Sheffield. Paul Naylor was walking with his friend Paige Sherwin when a car drew up containing a number of people, including the appellants and Zubair Akhtar. Following a shouted altercation, Akhtar got out of the car and punched Mr Naylor causing him to fall back and hit his head on the ground. He was seriously injured and remained in hospital for 18 days. Akhtar later pleaded guilty to a section 20 charge and was awaiting sentence at the date when the appellants were sentenced. We are told that since then he has been sentenced to a term of 12 months' imprisonment on his guilty plea.
3. The police were called to the incident and Miss Sherwin identified Akhtar as the assailant. The occupants of the car were friends of Akhtar as was Benjamin Rose, who seems to have come onto the scene later. The police interviewed potential witnesses including the appellants and Benjamin Rose. The appellants later gave witness statements. They were in similar terms: they had been in the car as it drove up to where Mr Naylor was lying on the ground being tended by Miss Sherwin. They had simply stopped and offered assistance. The assault must have occurred before they arrived. They all said they did not know how Mr Naylor had been injured.
4. The appellants were told that they must tell the truth and would be liable to prosecution if they did not. The appellant Cerrone said she understood and appeared to be alert. The appellants Nicola and Rachael East appeared nervous but coherent. The fact that their statements were false came to light when a CCTV recording was recovered which belied their account. It showed the car entering Bowfield Road before the attack on Mr Naylor.
5. Following their arrest, Cerrone gave a prepared statement which effectively maintained the account she had previously given. Nicola East also broadly maintained her previous account but said she had been more intoxicated than she had thought at the time, and that some of the bits she thought might have taken place might not have happened. Rachael East initially said she wanted to retract her statement, said she had not seen anything but, when asked further questions, gave no comment answers. They all entered guilty pleas at the plea and case management hearing.
6. Natalie Cerrone is 25 and had no previous convictions. After some prevarication she acknowledged to the maker of the pre-sentence report that she should have told the truth. She had been in continuous part-time employment for eight years and was also the mother and primary carer of a six-year-old son. She is also expecting another child in early January 2012. The pre-sentence report expressed concern for the care of the child since Cerrone's mother was in full-time employment and the father of the child had limited weekend contact. The proposal was for a community order with a specified activity requirement, attending the "together woman project", with the possibility of an unpaid work requirement.
7. Nicola East is 38. She too had no previous convictions. She told the maker of the pre-sentence report that she regretted what she had done. Her two oldest sons were in prison and she had brought up a third son, who was now aged seven, alone. She had ambitions to train as a teacher. Her time was occupied by voluntary work, teaching placements and study. This ambition has almost certainly been thwarted by her conviction. Again the pre-sentence report expressed concern for the care of the child, proposing in her case a community sentence with an unpaid work requirement.
8. Rachael East is 40. We are told that she was the girlfriend of Akhtar. Although she had a number of historic convictions, the judge, rightly in our view, did not take them into account. She had told the writer of the pre-sentence report that she had taken the lead in devising the false account and had notified the other two. This was denied on her behalf at the sentencing hearing, but the judge proceeded on the basis that she had instigated the lie and was plainly entitled to do so. She was not in employment, was heavily in debt. She had a five-year old daughter who lived with her. Normally she would have asked her sister Nicola to look after this daughter. The only alternative arrangement was for her other 19-year-old daughter to do so, but that daughter was herself heavily pregnant. The proposal in her case was a community order with a supervision and curfew requirement.
9. In passing sentence the judge noted the pleas of guilty and the good character or substantial good character of the appellants. He said that the false statements had been made to draw attention away from Akhtar out of a misguided sense of loyalty. Despite the mitigation in each case the judge concluded that a custodial sentence could not be avoided. It was a serious offence, involving a degree of planning and with the intention of misleading the investigation of a serious crime. Rachael East received a longer sentence in the light of her role.
10. Today we have been told what the current position is. So far as the children are concerned, Nicola East's son is living with his father. However, there are behavioural problems in relation to his conduct and the father has been called to the school for the matter to be looked into. Natalie Cerrone's son is living between the father and his maternal grandmother. Rachael East's young child is with her 19-year-old daughter, who has now given birth. There have been difficulties with that birth which has placed burdens on the young mother.
11. In the grounds of appeal, Mr Stanbury takes a single point on behalf of Nicola East and Natalie Cerrone that in passing an immediate custodial sentence the judge did not take any or any sufficient regard to the impact of the sentence on each of these two appellants' children. He relies on a number of cases, including the most recent case of Bishop [2011] EWCA Crim 1446 and a decision of the House of Lords, R (P) v Home Secretary [2001] 1 WLR 2002 and particularly the observations of Lord Philips at paragraph 79 and the importance of taking into account the effect of a custodial sentence so far as separating a mother from her young child is concerned. He recognises that he did not make any detailed submissions about the impact before the judge. He submits that the sentence should or could have been suspended or have been a very short period of imprisonment in the light of the personal circumstances. For Rachael East Mr Jones makes a similar point. He recognises that the offence calls for a sentence of imprisonment, but submits that the sentence should be suspended in the light of her obligations to her five-year old daughter.
12. We should say at once that this was a serious offence. The appellants' lies were intended to prevent a man whom they knew had committed a serious assault being held to account for it. In our view the judge was right to pass sentences of immediate terms of imprisonment on the appellants, despite their previous good character or substantially good character. Nor do we accept a generalised submission that the application of an otherwise correct sentencing approach should be disregarded solely on the basis that there are young children from whom a defendant is the principal carer. This will nevertheless be a consideration.
13. We are persuaded that these are unusual and special cases where as an act of mercy in the case of Natalie Cerrone and Nicola East the sentences can properly be reduced to terms of three months and in the case of Rachael East to a term of four months. In doing so we have in mind that all the appellants are primary carers of young children and that it is those children who are properly deserving of any act of mercy. We also have in mind Cerrone's imminent confinement, and Nicola East's loss of a praiseworthy career ambition and in the case of Rachael East that there are particularly acute problems of care for her child. Accordingly, we quash the sentences in each case and substitute sentences of three months in the case of Natalie Cerrone and Nicola East, and four months in the case of Rachael East. To that extent the appeals are allowed.