England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
RH - ON APPEAL FROM OXFORD CROWN COURT
(HHJ P. ROSS)
T/2016/0013
LA - ON APPEAL FROM SWINDON CROWN COURT
(HHJ MOUSLEY QC)
T/2016/0076

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2016

LORD JUSTICE TREACY:

1. Both these cases which are connected have been referred to the full court by the Registrar. Each involves an offence of child abduction.
2. The case of RH was brought under section 1 of the Child Abduction Act 1984. That section relates to offences committed by parents, (or others defined at s.1(2) as having a close connection with a child under sixteen), and who take or send the child out of the UK without the appropriate consent.
3. The case of LA is a section 2 offence. This is committed by other persons, (defined in s.2(2)), who without lawful authority or reasonable excuse take or detain a child under the age of 16 so as to remove or keep that child out of the lawful control of another. Both offences carry a maximum of 7 years when tried on indictment.
4. There is no guidance on sentencing from the Sentencing Guidelines Council or Sentencing Council. The offences can vary widely in terms of gravity and we consider it appropriate to give some guidance to sentencers.
5. We think it right to adhere to the approach of s.143 of the Criminal Justice Act 2003 by considering the seriousness of an offence by reference to an offender's culpability and the harm caused. Such guidance as we give will necessarily be general in nature and should be flexibly applied. As always each case will need to be considered in the light of its own particular circumstances. In addition, as this court observed in R v Kayani and Solliman [2012] 2 Cr App R (S) 38 at [53], cases of this sort should normally incorporate a significant element of deterrence.
6. We have considered Kayani, R v SB [2012] 2 Cr App R (S) 71 and a number of other decisions of this court which reflected the varying circumstances underlying prosecutions for these offences. We have also had the benefit of one member of this constitution having considerable experience in handling abduction cases under the jurisdiction of the Family Division of the High Court.
7. It seems to us that the most serious class of case, of which Kayani is an example, will involve a high level of harm exemplified by a very lengthy period of abduction or detention, a serious effect on the child (whether emotional or otherwise), or serious damage to, or severance of a loving relationship with a parent, siblings, or other relevant person.
8. High culpability may be exemplified by persistent non-disclosure or concealment of the place of abduction, significant and sophisticated planning, breach of a court order or disregard of court process, intention to sever the relationship between the child and another relevant person, or abduction for a criminal purpose (for example a sexual purpose, female genital mutilation, or forced marriage).
9. Where there is a combination of both a high level of harm and a high level of culpability we would expect the bracket for such offending after a trial, to be 5 to 7 years.
10. Factors at the lower end of the spectrum of harm will include situations where there has been a brief period of abduction or detention, minimal effect on the child, or minimal effect on the relationship between the child and other affected party. Lesser culpability will be reflected where the abduction or detention is impulsive or spontaneous, or where there has been prompt subsequent disclosure of the place of abduction enabling effective action to be taken by the authorities. It may be that some of the more minor cases will not be dealt with by the criminal justice system at all, but rather by the Family Court by way of contempt proceedings. Where criminal proceedings are brought, then this guidance should be applied. Cases at this level will be particularly fact sensitive and we consider that a range between a high level community order and a term of 18 months imprisonment is appropriate where low level harm and culpability factors are in play.
11. Not all cases will involve a combination of high harm and high culpability factors or low harm and low culpability factors. Where there is a combination of, for example, high culpability and low harm or vice versa, the case will fall into an intermediate sentencing range of 18 months to 5 years. This range is necessarily wide to reflect a multiplicity of circumstances which would bring cases within this range. That may be based on combinations of high and low harm and culpability factors. It may also be based on medium level harm factors (such as a significant period of abduction or detention as occurred in the case of RH below), and/or medium level culpability factors. In short, this intermediate category will cover any combination of factors which is not high/high or low/low in terms of harm and culpability.
12. Another medium level harm factor would be where there has been some emotional or other effect upon the child's life as occurred in LA below. A further medium harm factor will arise where there is some harmful effect upon the relationship between the child and the adult from whose custody or control a child has been taken (see RH). A medium level of culpability will also arise where some degree of planning is involved (see LA). It will of course be for a sentencing judge to weigh and assess where in the spectrum of harm and culpability any individual case falls, and to identify into which of the ranges an assessment of those factors places the case.
13. In considering where to place a case within a range the court will also need to have regard to aggravating and mitigating factors in the usual way. Obviously features common to all offences such as previous good or bad character will play their part. Non-exhaustive offence-related aggravating factors include exposing the child to risk of harm; abduction of an already vulnerable child; group action; use of significant force; abduction to a non-Hague Convention country; abduction to a place with which the child has no prior links; and, in s.2 cases, removal from the jurisdiction. Non-exhaustive mitigating factors include enabling prompt contact to take place with the adult deprived of custody or control, compliance with court orders, and cooperation with authorities.
14. In addition, it is open to the court to take into account the effect of a sentence on a child where the offending person is the sole carer for the child abducted or other children. This is not a matter of mitigation personal to the offender; rather, it arises from the need for court to have regard to the interests of a child or children affected. Careful consideration of the principles laid down by this court by in R v Petherick [2012] 1 Cr App R (S) 116 is required so that wider public interests and those of a child are dealt with proportionately.

RH

15. Ms RH pleaded guilty during the course of her trial at Oxford Crown Court in July 2016 after the judge ruled that there was no defence to be left to the jury. Credit for a guilty plea was therefore limited. She was sentenced on 1 September 2016 to a term of 1 year 8 months imprisonment with 17 days to be credited in relation to a qualifying curfew pursuant to s.240A of the Criminal Justice Act 2003. We make an order pursuant to s.45 of the Youth Justice and Criminal Evidence Act 1999, prohibiting the publication of any matter likely to identify the victim (referred to as A in this judgment).
16. The applicant and her former husband had a daughter who was born in January 2007. In April 2015 the daughter, A, then aged 8 was living with the applicant. The Family Court had recently made a contact order in favour of the child's father after a period in which there had been no contact. The first contact was to take place in April 2015 and at around that time the applicant gave notice at work. In May 2015 the father received information that the applicant intended to move abroad. On 22 May 2015 he was granted an ex parte prohibited steps order by the Family Court forbidding the applicant from moving A from the jurisdiction. This order was served on the applicant by post.
17. On 30 May, the day after the applicant's employment had ceased, she travelled with her partner and A to Cyprus; she had bought one-way tickets. Shortly afterwards when A failed to attend a contact appointment with her father, and when he learned that she had not returned to school after the half term break, he contacted the police.
18. The applicant remained out of the jurisdiction until August 2015. During that period she took A to Cyprus, Egypt, the United Arab Emirates, and finally to the USA. The police managed to speak to the applicant on 15 July 2015 by Skype. On that occasion she refused to disclose her location. She also provided information via her solicitors to the Family Court which was false. There was a Family Court hearing on 6 August. The applicant attended, having returned alone to the UK, and was arrested. When interviewed she lied to the police about her travel arrangements and about A's whereabouts. She also lied about having resigned from work, pretending that she had simply said that she would be away for about 10 days.
19. A returned to the UK on 4 September 2015, having been out of the jurisdiction for about 3 months. She had been in America with a member of RH's family. She then went to live with the applicant. In March 2016 the Family Court ordered that the child's father should have no direct contact with her. That decision was made against a background of there having been no contact between the child and her father between mid-2013 and Spring 2015 when he obtained contact. The contact between father and daughter after the order and prior to the abduction had been difficult.
20. In passing sentence the judge made a number of important factual findings. He was in a good position to do so having heard evidence at the trial prior to the guilty plea. He found that the applicant had lied in suggesting that A had been removed from the jurisdiction because she was distressed by the contact arrangements with her father. This had been a premeditated settled plan designed to frustrate contact. The judge said he was far from satisfied that the applicant had not intended to keep A out of the jurisdiction permanently. He was satisfied, contrary to the applicant's assertions, that she had received the prohibited steps order from the Family Court and that she and her partner had repeatedly and wilfully obstructed the efforts of the police to locate A. She had repeatedly lied in interview and had deliberately returned to the UK without A so as to frustrate whatever orders the Family Court might make. There had been deliberate and wilful disobedience to the orders of the Family Court. In the circumstances there was no alternative to an immediate custodial sentence, notwithstanding the impact that that would have upon A.
21. We note that the grounds of appeal in a number of places advance factual assertions which are at odds with the judge's clear conclusions. No basis of plea was tendered to the court. We consider that the judge who had heard the evidence was entitled to form the conclusions which he did, and we proceed on that factual basis.
22. The applicant is 32 and of previous good character. Prior to her trial she had found new employment. The court proceedings were said to have caused her anxiety and depression. There was a pre-sentence report which recommended a community sentence. It suffered from the disadvantage of being based at least in part on an account of the offence which had been rejected by the judge. We have seen a post-sentence report showing satisfactory behaviour in custody.
23. The grounds of appeal submit that the sentence imposed was too long. A number of specific points have been made. It is said that the judge paid insufficient regard to the applicant's role as primary carer for A and the impact of her imprisonment upon the child. The applicant was the child's sole carer and A was said to be sensitive child who needed the opportunity to develop in an atmosphere free from anxiety and fear. In this context it is said that the judge did not give sufficient weight to a report provided to the Family Court prior to the 2016 proceedings, which withdrew direct contact from the father. We note that that report also contained a version of events not accepted by the trial judge. In addition it was argued that the judge gave insufficient weight to the applicant's otherwise good character and the fact that there was minimal damage occasioned to A's relationship with her father, since A had not wished to, or had been reluctant to, see her father prior to the abduction. Finally it is said that the judge paid insufficient regard to the impact of a custodial sentence upon A, and to what was described as the relatively short duration of the abduction.
24. Whilst we recognise that the period of abduction was not of the duration to be found in some cases, it was nonetheless for a significant period. It was of an order significantly greater than cases where the child is returned after a short period. The abduction was in direct defiance of a court order made very shortly beforehand, and represented the culmination of a plan which the judge found was designed to prevent contact between father and child. Whilst there had undoubtedly been difficulties in the small amount of contact which did take place in 2015, a court had ordered that such contact should take place with the aim of fostering an ongoing relationship between father and child. The applicant's actions were calculated to extinguish that possibility. The applicant's behaviour is further aggravated by her refusal to disclose the child's whereabouts or to cooperate with the authorities when given the opportunity to do so. The applicant lacks the mitigation of remorse or the credit which a prompt guilty plea might have attracted.
25. In the circumstances therefore it hard to see that there is any significant personal mitigation available to this offender. There is, however, the position of the child to be considered. The applicant had been her main carer and the result of a sentence of imprisonment is that A has gone to live at the home of a school friend. She, therefore, lives in the same area and attends the same school as before. She is not in wholly unfamiliar surroundings, but the change will have had an impact. That is, of course, a situation which has been caused entirely by the applicant's own irresponsible and criminal actions which placed her own priorities before those of the child. Nonetheless, in the light of R v Petherick, the position of the child remains a relevant consideration for the court to put into the balance in coming to a conclusion as to what is a proportionate and just sentence which also has regard to the level of gravity of the offending.
26. We are entirely satisfied that the nature of the offending in this case, even where the child was ultimately returned to the jurisdiction, was such that an immediate custodial sentence was called for. The accumulation of aggravating features required a sentence of some substance. Having regard to all the circumstances we are unpersuaded that there was anything arguably excessive about the sentence imposed below, even when the interests of A are put into the scales. There was nothing unjust or disproportionate about the sentence imposed, and, indeed, it might well have been somewhat longer. Accordingly this renewed application for leave is dismissed.

LA

27. LA is the grandfather of the child abducted. He pleaded guilty at trial. On 9 September 2016 he was sentenced at Swindon Crown Court to 2 years and 6 months imprisonment. In this case we make an order under s.45A of the Youth Justice and Criminal Evidence Act 1999, prohibiting the publication of any matter likely to identify the victim (referred to as B in this judgment) during his lifetime.
28. The applicant is aged 55. At the material time the victim B was aged 12. Both parents were separated, and B had since 2010 lived with his mother. Both parents enjoyed joint parental responsibility and there were contact arrangements in place for B to see his father.
29. On 4 June 2015 B's father received a call from him saying that his mother had gone out and that he wanted to be picked up. The father collected B from his mother's address and took him to live with him and his new family. B was a willing participant in this. His mother was informed promptly of what had happened. The local authority's childrens' service conducted an assessment of the situation. It was agreed that B should remain with his father until such time as any court order was made to change the position. Whilst B had been living with his mother, matters had been raised which had been subject of investigation by the authorities, but no action had been taken.
30. About 6 weeks later, on 17 July, B was playing with other children near his father's home. This applicant had been waiting in a car nearby with B's mother. He abducted B by pulling him off his bike, carrying him to the car and bundling him into the rear of the car before driving off. Once in the car the applicant showed a metal chain and made comments about killing B's father and "putting him in a box". B was very frightened by this; he was taken to the grandfather's address where he said that he wanted to be returned to his father.
31. A neighbour had witnessed the abduction and the police were alerted. In the meantime B's mother telephoned B's father to say that B was with her. A few hours later police went to the applicant's home. They found B distressed and crying and asking to be returned to his father's care. This then took place. When interviewed the applicant denied taking B against his will, maintaining that he happily walked to the car. When he pleaded guilty a basis of plea was put to the court, accepting that he had carried B to the car, and asserting that witnesses "may have been confused" by what was going on. This does not appear to us to affect what was clearly a forcible taking of B against his will.
32. The judge had a victim personal statement from B. It shows that he was considerably upset and affected by what had happened and that he remained apprehensive of a repetition.
33. Although there are convictions recorded against the applicant, none of them is relevant to this offending. There was a pre-sentence report in which the applicant did not properly acknowledge what had taken place. We have seen satisfactory prison reports.
34. The grounds of appeal urge that the sentence imposed was manifestly excessive, particularly having regard to the background. This was described as an impetuous and ill-judged offence rather than a wicked one. The boy had been abducted for a period of hours only. He had not been taken to some unfamiliar place, and his father had been informed about the boy's whereabouts within a short time of his abduction. In those circumstances this case lacked significant aggravating features present in other cases, and fell much lower down the spectrum of offending.
35. We consider that there is some force in those submissions, although we do not consider that the offence was entirely impetuous given the journey from Bristol to Chippenham in order to abduct the child, which demonstrates some degree of planning. Although the duration of the taking was relatively short, it is aggravated by the forcible abduction of an unwilling child, who was frightened by the threats against his father and significantly distressed by the whole episode. On the other hand, it is important to recognise that the offending was not calculated to prevent the child seeing his father or to leave the father in ignorance of the child's whereabouts for any significant period. There was no question of removal from the jurisdiction.
36. Balancing the various factors, we have come to the conclusion that the sentence of 30 months was too long. In passing sentence the judge said that, after a trial, he would have imposed a term of 3½ years. He then gave credit of around 25% notwithstanding a very late plea which should have attracted 10% credit. Even grossing up from that lower level of credit which better accords with practice and the relevant guideline, the sentence passed was in our view too long. We consider that a sentence approaching 18 months was appropriate for this offending, which had a degree of premeditation, use of force and significant harmful effect upon the child. We grant leave to the applicant and allow the appeal by reducing the term of 30 months to one of 15 months imprisonment which takes account of the late guilty plea.