England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2016

Mr Justice Foskett:

1. The provisions of section 45A of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victim is a child. This enables the court to make a direction that no matter relating to the victim shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings. We make such a direction in this case. We will refer to the victim as X throughout this judgment. She is now aged 10 having been born in 2006.
2. We heard the appeal on 11 May 2016, but in the circumstances to which we will refer, we adjourned the matter for further papers to be obtained from the Family Division. That has occurred and we have had the benefit of some further written submissions concerning that material from Mr Joel Bennathan QC, who represented the appellant before us. This judgment represents the decision of the court.
3. The appellant, who is now aged 76, is the father of X. He is an Indian national, but has lived in the UK for over 50 years. He has no previous convictions.
4. The appellant had a brief relationship with X's mother, who we will call BS, in or around 2005. She was 36 years his junior. She is Polish by birth, but has lived in the UK for a number of years. She had a significant history of alcohol abuse.
5. In the circumstances we will describe the appellant pleaded guilty at Leicester Crown Court on 30 October 2015 to one offence of abducting a child contrary to section 1(1) of the Child Abduction Act 1984. On 27 November 2015 he was sentenced by H.H.J. Nicholas Dean to 3 years and 4 months' imprisonment. This represented a 25% reduction of a starting point of 4½ years.
6. He appeals against that sentence with the permission of the single judge
7. It is not entirely clear for how long the appellant and BS lived together, but it appears to be common ground that the relationship was difficult and they did separate. For various periods when X was about a year old, she was looked after by her maternal grandmother, either in Poland or the UK. The appellant saw X from time to time (which the judge characterised as "sporadically but often"). He had expressed the desire that she should be educated in a closed boarding school in India. He sought legal advice in 2011 and was advised he would need a court order to take her out of the country.
8. During 2012 it appears that X spent a fair amount of the year with her grandmother in Poland, but then, because of the grandmother's ill-health, BS's sister took over her care in about July. In September 2012 X was due to start at a school in Poland, but the appellant paid for BS to go to Poland to bring X back. She went to Poland but returned without her and as a result the appellant went to Poland to collect X himself. He did indeed bring her back to the UK and there were disputes between him and BS about who should look after X. As we understand it, during this period the appellant was permitted by the local social services department to look after X because of BS's alcohol-related issues.
9. At all events, in December 2012 X was staying with the appellant and he plainly made the decision to take her to India and away from any contact with her mother. On 16 December 2012 he wrote a letter to the local police and to X's school stating he would be taking X away. He flew with X to Romania from Gatwick Airport that day without, of course, her mother's permission or the permission of any court in the UK. This was a requirement as BS had parental responsibility for X. The police eventually located X in an English boarding school in the Punjab in January 2013. The police contacted the appellant and explained that he needed to bring her back to this country. The appellant said X had been accepted at the school and was due to start permanently in March 2013. He was told he had committed a criminal offence. He was interviewed by police on 15 March 2013 when he returned to the UK. He was arrested on suspicion of child abduction and his passport was taken from him. He accepted that he had taken X to India but said it was in her best interests.
10. On 4 April 2013 an order was made in the Family Division for the child to be returned to the UK, but there were ongoing difficulties securing her return because the school in India refused to release her without confirmation from the Indian authorities. She was still at the school in India as of the date of the sentence hearing in November last year. We will return to the further orders made in the Family Division in the intervening period.
11. The net effect of this, of course, is that X and BS have not seen each other for over 3 years.
12. Although the appellant denies it, it was the prosecution case, supported by the opinion of the author of the pre-sentence report, that he had done little to try to secure X's return to the UK. In light of the fact that X had not been returned to the UK, the CPS reviewed the file again and decided that no further action was to be taken. BS challenged that decision and in May 2015 the CPS decided to take criminal proceedings. There was a preliminary hearing on 26 August 2015 when, on the basis of advice from his then counsel (not Mr Bennathan) he indicated a not guilty plea. However, that changed with separate representation and he pleaded guilty on the date we have indicated.
13. The judge had the benefit of a pre-sentence report in which it is recorded that the appellant claimed he was not aware of the illegality of his actions, but, as the judge said, the appellant would have known that it was wrong, even if not specifically criminal, at the time he did what he did. That must, in our judgment, be correct. According to the author of the pre-sentence report, the appellant said he would like to see X returned to England, but this contradicted information from the police which stated he had been obstructive and unhelpful with their efforts to ensure the child was returned safely. It was said that he displayed limited insight into the consequences of his actions on his daughter and ex-partner, but was assessed as posing a low risk of reconviction and a low risk of harm to the general public and a low risk to children.
14. The judge received 15 character references which, the judge said, "speak glowingly" about the appellant and a letter from the appellant's doctor which set out certain relatively minor medical problems he possessed.
15. The judge described facts of the case as troubling, but accepted that the appellant was fond of X and had an interest in her welfare. The judge did not, however, accept that the appellant's actions in 2012 were to protect X from her mother about whom, he said, there was no evidence that she "was anything other than a loving mother to her daughter." The action was to fulfil a long-expressed desire that she should be schooled in India. The judge concluded that he had done little to assist in the return of X to this country.
16. He described the appellant's actions as "cruel beyond measure" to BS and to X and said that it was "hard to overstate the anguish felt by X's mother at having been kept away from her daughter for almost three years." X was only six when she was taken to India and it was likely that real harm had been done by keeping her from her mother for three years.
17. Subject to the question of whether he was justified in concluding that the appellant "had done little to assist in the return of X to this country" we do not think any aspect of that analysis by the judge can justifiably be criticised.
18. In order to assess whether the judge was entitled to reach that conclusion, we thought it right to see what further orders had been made in the Family Division and whether there was material that informed that issue. In summary, the case came back before various judges of the Family Division thereafter on 22 April 2013, 11 June 2013, 24 June 2013, 16 August 2013, 17 October 2013, 6 March 2014, 4 July 2014, 8 August 2014, 13 March 2015, 8 May 2015, 18 May 2015, 14 December 2015, 15 February 2016 and 20 April 2016. At all stages the court was endeavouring to make orders which would secure the return of X to the jurisdiction.
19. It is right to say, as Mr Bennathan submits, that there are no findings by a judge that the appellant had deliberately obstructed the court in its efforts to have X returned to the UK, but, as he also accepts, there are some indications that the appellant had been interfering where he should not have been interfering. For example, the order made on 6 March 2014, which ordered contact for the mother, stated that the headmaster of the school "is respectfully informed that this order takes precedence over any instructions the first respondent father may have given."
20. At the end of the day, there is nothing in the new material that satisfies us that the judge was wrong to take the view he did. However, we would add this: if it is the case that the appellant had been trying to secure X's return, but was frustrated by the attitude of the school authorities in India, that attitude would not have developed if the appellant had not taken the cruel step of taking X to India in the circumstances in which that took place. Efforts to retrieve the position thereafter can only go so far as a mitigating circumstance.
21. The only issues, in our judgment, are whether, having regard to all the circumstances, including the appellant's age and previous good character, a starting point of 4½ years was too high and whether the discount for the plea of guilty was appropriate.
22. There are no sentencing guidelines as such but authoritative guidance is to be found in the case of Regina v Kayani and another which is reported at [2012] 2 Cr App R (S) 38. This court (comprising of Lord Judge CJ, McFarlane LJ and Royce J) dealt with two cases in which, as the court put it, "the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed." The court reviewed cases where sentences for this kind of offence were imposed. It summarised the position as follows:

"The decisions in these cases were fact specific and of heightened sensitivity, but the general theme was that the offence, even if committed by a loving parent, was a serious offence and one of the repeated themes in the sentencing decisions was that there should be a significant element of deterrence in the sentence. In the Court's view, the abduction of children from a loving parent was an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they might later think of the parent from whom they had been estranged as a result of the abduction. It was a cruel offence even if the criminal responsible for it was the other parent."

23. In Kayani in 2000, the two boys concerned, then aged five and four, were handed over to the appellant for the week and the mother was given what she was led to believe was the appellant's UK passport, but in fact it was an old one. He flew to Pakistan with the children and his sister, using his newly obtained passport and some Pakistani passports he had obtained for the children. The mother made various attempts to contact the appellant and on two occasions flew to Pakistan to find the children. In 2006 the mother instituted divorce proceedings and the appellant contacted her by telephone but would not tell her where the children were. Eventually in 2009 the appellant returned to the United Kingdom with the sons, who were then aged 15 and 13. He made no effort to contact the mother. Eventually police inquiries resulted in the sons being identified. The mother had still not seen her sons, who refused contact with her. He was sentenced to 5 years' imprisonment and the sentence was upheld by this court which described the circumstances of the case as "outrageous".
24. Kayani was aged 49 at the time of sentence and of previous good character. He pleaded guilty at a time when a 20% discount was applicable. This gave a starting point of 6 years and 3 months, not far short of the maximum sentence permitted by statute of 7 years. This court described the sentence as at the higher end of the appropriate bracket following a guilty plea, but nonetheless not manifestly excessive.
25. In Solliman contrary to undertakings given to the Family Court the appellant without notice to the court, or to the mother of the children removed all three children (then aged eight, seven and five years respectively) to Egypt in April 2002. He did not return to the United Kingdom with the children until November 2009 and made no contact with their mother. However, she discovered through a social networking site that they had returned. The police were contacted. The appellant was arrested in February 2010. When he was interviewed he admitted the abduction of the children. He was granted bail throughout the proceedings, and the children continued to live with him until he was sentenced to 3 years imprisonment.
26. Solliman's age is not recorded in the report but the ages of the children suggest that he may also have been in his late 40s or early 50s at the date of sentence. The precise credit given for his plea of guilty is not specified save that it was acknowledged to be an "early" plea. We infer that the starting point was between 4 and 4½ years.
27. This court said that this was a prolonged abduction and the natural bond between mother and children has been permanently severed. It concluded that the sentence was an appropriate sentence, and if it had been somewhat longer, the court would have been unlikely to interfere.
28. Suggested distinctions between those cases and the present case have been made. It is said that in that in each of those cases the children were removed from the mother's custody in defiance of court orders, that fraudulent travel documents were obtained to facilitate the abduction and that the children were kept at an unknown destination by the two fathers over many years to prevent contact with the mother. Here it is said that the appellant notified the school and the police and indeed it is right to say that the location of X has been known throughout. However, BS, who is a Polish national with some difficulties of her own, would have to travel to India to secure contact with X because she is in a boarding school. The distinction is of no real difference. Furthermore, the appellant notified the school and the police after it was possible for either to do anything about it.
29. We accept that it could be said that there are some aspects of those two cases that are worse than the present case, but these distinctions are of little relevance: the essential evil of what was done is the same.
30. Despite the appellant's age, we do not consider that a starting point of 4½ years is manifestly excessive given the nature of this offending and the need for there to be an element of deterrence in any such sentence.
31. The appellant received a 25% discount for his plea of guilty. It was not the full one-third because of the initial delay in intimating his intention to plead guilty. We need not go into detail, but that delay was caused by flawed legal advice given by counsel then acting for him to the effect that he may have a defence to the allegation. The appellant was, at the time, a 75-year old man who had worked in a factory and spoke imperfect English. Mr Bennathan put the matter elegantly in a Note prepared for the court prior to the hearing in May when he said that counsel's views were "on the outer fringes of reasonable legal analysis" and that the appellant "should not pay the price for that unconventional legal opinion." We might have expressed our view of the advice given in stronger language, but in essence we agree. This falls within the residual flexibility given to the sentencing judge arising when "poor advice" has been given: see [28] of the judgment of this court in Caley [2013] 2 Cr App R (S) 47.
32. We will allow the appeal to the extent of giving the Appellant the full one-third discount for his plea of guilty and, accordingly, substitute a sentence of 3 years imprisonment for that imposed by the judge.