England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 November 2017

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LORD JUSTICE SIMON:

1. The Attorney General seeks leave to refer sentences passed on the offender, now aged 27, at the Crown Court of Bolton on 25 August 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. At a plea and trial preparation hearing on 25 January 2017 the offender was arraigned on indictment T20160442. He pleaded not guilty to charges of perverting the course of justice, witness intimidation, dangerous driving, handling stolen goods and making threats to kill. He pleaded guilty to a single offence of criminal damage and the case was then put over for trial on the remaining charges.
3. At a further plea and trial preparation hearing on 26 January the offender was arraigned on indictment T20160441 which contained a single count of handling stolen goods.
4. On 6 June, the first day of the trial, the prosecution obtained leave to add three counts to indictment T20160442: Count 1, assault occasioning actual bodily harm, Count 2, possession of a firearm with intent to cause fear of violence and Count 9, putting a person in fear of violence by harassment.
5. The offender was then arraigned on these charges and re-arraigned on some of the other counts to which he had pleaded not guilty in January. He entered the following pleas: Count 1, assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, the particulars being that on 11 December 2016 he assaulted Charlotte McGinty ('the victim') thereby occasioning her actual bodily harm. Count 2, possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968, the particulars being that on 11 December 2016 the offender had in his possession an air pistol with intent to cause the victim to believe that unlawful violence would be used against her. Count 3, doing an act tending and intended to pervert the course of public justice, the particulars being that between 10 December and 18 December 2016 the offender contacted the victim and asked her to retract her complaint of assault. Count 5, dangerous driving, contrary to section 2 of the Road Traffic Act 1988, the particulars being that on 27 December 2016 the offender drove a Nissan Juke motorcar dangerously on Golborne Road in Golborne. Count 9, putting a person in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997, the particulars being that between 10 December and 28 December 2016 the offender threatened the victim with violence on at least two occasions.
6. The offender had previously pleaded guilty to Count 8, criminal damage, the particulars of which were that on 27 December 2016 he had damaged a CCTV system belonging to the victim.
7. The prosecution offered no evidence on Count 4, witness intimidation, Count 6, handling stolen goods, and Count 7, making threats to kill, and not guilty verdicts were entered accordingly.
8. On 25 August 2017 the offender was sentenced in respect of the six counts to which he pleaded guilty on indictment T20160442 and also in respect of the single one count of handling stolen goods on indictment T10160441.
9. The sentences were, 3 months' imprisonment for the offence of handling stolen goods; 12 months' imprisonment consecutive on Count 1, the count of actual bodily harm; 12 months' imprisonment concurrent on Count 2, the offence of possession of an intimidation firearm with intent to cause fear of violence; 3 months' imprisonment consecutive on Count 3, perverting the course of justice; 10 months' imprisonment consecutive on Count 5, dangerous driving; 2 months' imprisonment concurrent on Count 8, criminal damage; 4 months' imprisonment consecutive on Count 9, harassment by putting the victim in fear of violence. The total was a term of 32 months' imprisonment.
10. The court also made the offender subject to an indefinite restraining order to prevent him from contacting the victim and from going within 800 metres of her address.
11. In addition, the court ordered the offender to be disqualified from driving for a period of 2 years and a further 8 months to take into account time left to serve in custody and then until such time as he passed an extended driving test. A victim surcharge order was also made against him.
12. The offender and Charlotte McGinty entered into a relationship in about March 2016. Both she and the offender recognised that he had mental health problems, although the precise nature of those problems was unclear.
13. On 12 August 2016 the owner of a grey Vauxhall Astra parked his car on Kirkham Road in Leigh. He locked it and left it there overnight. When he returned the next morning it was gone. The car was worth about £6,000.
14. On 8 November 2016 police officers received a report of a suicidal male in Rydal Street, Leigh. While en route the officers received a further report that the male had driven off in a Vauxhall Astra. The officers arrived at Rydal Street and spoke to Charlotte McGinty. She said that the offender had driven off in a stolen car with a false licence plate. He was stopped on foot a short distance away. The car was found parked nearby. The licence plates on the car were false. It transpired that this was the stolen Vauxhall Astra.
15. The police arrested the offender. Because of his behaviour he was sectioned under the Mental Health Act. He was released shortly afterwards and on 19 November was interviewed under caution about this offence. He said a couple of men had approached him some weeks before and offered to sell him a car. He thought the deal was "dodgy" but as they only wanted £150 for it he felt it was too good to turn down. The men gave him a key to the car and he gave them the money. These events gave rise to the handling charge. Following this the offender was released on bail.
16. On 11 December 2016 he and Charlotte McGinty were together at her house. He woke up in a bad mood that morning. She went downstairs to make them both a cup of tea. When she came back upstairs with the tea he said he didn't want it and if she left it for him he would throw it at her.
17. She put his tea down and began to leave the room. The offender then launched himself out of bed and grabbed her by the throat with one of his hands. He started to squeeze. She pushed him away and ran out of the door and down the stairs. He shouted after her "It's okay, I'll just fucking shoot you". She turned to look at him and saw he was sitting on the edge of the bed holding an air pistol. She recognised it as his. He had told her some time before he was going to get rid of it.
18. The offender fired the pistol at her. The pellet struck the left side of her torso causing her immediate pain and discomfort. She ran downstairs and grabbed the telephone to call the police. As she was talking, the offender came into the room. He threw her on to the floor and stamped on her arm to make her drop the telephone. She was screaming for help.
19. The offender went to the front door in order to get out of the house but it was locked and he did not have a key. Instead he tore the blinds away from the window in the front room and climbed out and ran off, just as the victim's neighbour came to the front door to see what all the commotion was.
20. The police arrived at her house a short time later. She told them what had happened and then went to hospital for treatment. She was found to have an injury to the left side of her torso. What the judge described as "a nasty weal", as well as bruising to her arms and leg. The offender's possession and use of the air pistol, and his attack on the victim, both in the bedroom and in the front room of her home, were charged as Counts 1 and 2 on the indictment.
21. The police were not able to apprehend the offender straight away; but he continued to contact the victim by telephone, both in calls and texts. In his text messages he told her how much he loved her and missed her. He also begged her to retract her statement to the police and said he would kill himself if she did not do as he asked. This conduct was charged as Count 3 on the indictment.
22. The victim reluctantly agreed to go to the police and withdraw her complaint against him which she did on 17 December. The offender accompanied her. Initially he was arrested but the following morning he was released with a Domestic Violence Protection Notice informing him not to contact the victim.
23. By now she had moved home, but following his release from custody on 18 December he turned up at her new address and begged her to take him back. He reiterated that he would kill himself if she refused to resume their relationship. Fearing that he would hurt himself if she refused, she reluctantly allowed him to stay. She did not want to be with him but felt in the circumstances she had little choice.
24. On 19 November 2016 the owner of a Nissan Juke car was at home. The car was parked on her driveway. Just after midnight she looked through the window and saw the headlights of her car turn on. Someone drove it off her driveway and sped off. She reported this theft to the police.
25. On 20 November, the next day, the offender turned up at Charlotte McGinty's home in this car. He said he had bought it from his cousin.

On 27 December 2016 she and the offender went in this car to visit her mother. On the way he said he needed to stop off and feed his dog which was living with a friend of theirs in Leigh. He asked her for some money to buy dog food but she refused. They started arguing.

26. The offender suddenly said "Fuck you, then" and performed a handbrake turn in the middle of the road and drove back the way he had come. He was driving at about 40 miles an hour in a residential area. He said to the victim "It's all right, it's stolen anyway, so I'll just kill us both". He then pulled the handbrake up again and let go of the steering wheel.
27. The car spun into the wall of a house, causing a considerable amount of damage to the wall, a gate and to the car itself. The victim was not wearing a seat belt, and hurt her right knee in the crash. She dived out of the car and the offender then sped off. This count was charged as Count 5 in the indictment, dangerous driving. The overall damage was estimated to be in the region of £15,000.
28. Charlotte McGinty walked home. As she was approaching her house she saw the offender walking along the street towards her. He said he had parked the car round the back of her house. He also told her he knew she had not been wearing her seat belt, and had hoped that she would go through the windscreen as a result of the crash. The victim told him to pack his things and get out. He packed his belongings and put them in her shed before he called someone to collect him.
29. She stayed inside the house and told the offender through the locked patio door that she was going to see her mother. He then started headbutting the patio window. He also made threats to her and damaged a CCTV system that she had installed in her back garden by cutting the wires. That act of vandalism was charged as Count 8 in the indictment, criminal damage. The cost of the repairs came to about £400.
30. His victim telephoned the police and they arrived a short time later and arrested him. As he was being led away he shouted "I love you, Charlotte". The police took a number of witness statements from her; and she asked them to reopen the investigation into the incident on 11 December with the air pistol.
31. All of the violence and threats directed by the offender towards the victim, to the extent that they did not feature in the other counts in the indictment, were charged as Count 9, harassment.
32. The police interviewed the offender on 28 December 2016. He was asked some more questions about his connection with the Vauxhall Astra. In the time since his previous interview his fingerprints had been found on the false licence plate. He said he could not account for that. He denied stealing the car but accepted handling it, believing it to be stolen.
33. He also admitted sending text messages to the victim in an effort to persuade her to drop the charges relating to what happened on 11 December. However, he denied making any threats to her, threatening to burn down her house, harassing her or going to her home on 18 December. He said he went to his own home to find that his front door was smashed. He then went to a friend's house. When confronted with CCTV images from the victim's home showing his arrival on 18 December at 6.23 in the morning, he changed his account and admitted he had gone to see her.
34. As to the Nissan Juke car, he said he bought this in good faith. He did not know it was stolen. He said that on 27 December the victim had been driving the car when it crashed, not him. He did not threaten her later that day. He accepted that he pulled out the wiring for the CCTV system; but that was the only offence to which he admitted.
35. The offender has seven criminal convictions from four previous court appearances. On 6 April 2009 when he was 18 years old he was sentenced to 34 months detention for two offences of robbery and two offences of having a knife in a public place. On 17 May 2016 he was sentenced to a community order with a curfew requirement for an offence of attempted non-dwelling house burglary. That was the last matter on his record before these offences.
36. There was a pre-sentence report dated 29 June 2017. In his interview with the author the offender sought to minimise his involvement in the offences. In some instances he blamed the victim. He denied deliberately shooting her. He said she grabbed the air pistol during an argument and it went off accidentally. He agreed he had tried to get her to withdraw her complaint. He said she was the one who owned the stolen car. She was driving it and she was the one who crashed it. He pleaded guilty to dangerous driving because he loved her and did not want to put her through the ordeal of a trial.
37. The author of the report gave her opinion that the offender "has little insight into the risk he presents and the physical and psychological harm he is causing to others". He had issues with power and control, and an inability to control his jealousy. He was subject to a police notice not to contact the victim at the time he committed the later offences involving her.
38. There were a number of victim personal statements. She said that she was terrified of the offender because of his unpredictable nature. She described his behaviour towards her as controlling and coercive. She suffered from anxiety and this affected her sleep. She felt safer knowing that he was in prison. She wanted to move on with her life without him in it.
39. At the sentencing hearing the judge considered that there was "an air of artificiality" about the inclusion of Count 2 in the indictment because the offender used the air pistol to cause actual bodily harm to the victim which was the offending in Count 1. He would pass a sentence "for actually firing the air pistol and causing a rather nasty bruise". In his view the assault was the shooting "and therefore the count of possessing an imitation firearm does not really add anything very much to that".
40. Turning to the Sentencing Council's Definitive Guidelines on Assault the judge decided that it was a category 1 case with greater harm and higher culpability on account of the use of an air pistol to cause injuries. That gave a starting point of 18 months' imprisonment with a range of 1 to 3 years. On account of the offender's antecedent history and the use of a weapon, he was minded to move up from that starting point but in the end he chose not to do so for reasons of totality.
41. The judge gave the offender credit of one third for his plea of guilty to Count 1, the assault, and so reduced the sentence to 12 months' imprisonment with an identical concurrent term on Count 2. They were ordered to run consecutively to the sentence of 3 months' imprisonment imposed for the offence of handling stolen goods charged on indictment T20160441.
42. As to Count 3, perverting the course of justice, the judge observed that this was a serious offence in itself. The starting point for such an offence was 4 months' imprisonment. The offender was entitled to credit of 10 per cent which brought that sentence down to 3 months to be served consecutively to the other sentences. By this stage of the sentencing exercise the total sentence was 18 months' imprisonment.
43. In respect of Count 5, dangerous driving, the offence was committed when the offender was on bail for the earlier offences. He intended to terrify the victim and succeeded. In the judge's view this was "a particularly serious offence of dangerous driving". The damage caused was significant too. The sentence after trial would have been 12 months' imprisonment. Affording the offender credit of 10 per cent for his plea of guilty the sentence on that count was 10 months' imprisonment to be served consecutively to the other sentences. At that stage of the sentencing exercise the total sentence was 28 months' imprisonment.
44. Finally, on Count 8, criminal damage, and Count 9, harassment, the judge took them together. The starting point for the criminal damage was 3 months' imprisonment. With credit for the plea of guilty that came down to 2 months. The starting point for the harassment was 6 months' imprisonment. With credit for the guilty plea, and bearing in mind totality, that came down to 4 months' imprisonment. Those two sentences were ordered to run concurrently to one another but consecutively to the other sentences, making a final total sentence of 32 months' imprisonment.
45. For the Attorney General, Mr Jarvis acknowledges that this was not a straightforward sentencing exercise. Nevertheless, he submits that an overall sentence of 32 months for this sequence of offending, even giving such credit as the offender was entitled to, was unduly lenient.
46. For the offender, Mr Christie reminded the court that this was a sentence passed by an experienced judge who had considered the guidelines and who had given appropriate credit. He accepted that the sentence viewed overall was lenient but submitted that it was not unduly so.
47. We have considered the submissions. The most serious offending in this deplorable history of domestic violence and abuse was represented by Counts 2 and 1, Count 2, possession of an imitation firearm with intent to cause fear of violence and the discharge of that imitation firearm causing the actual bodily harm charged as Count 1. The maximum sentence for the firearms offence is a term of 10 years and the proper approach to sentencing for crimes involving firearms and imitation firearms is set out in the well-known passage of the judgment of this court in Avis [1998] 1 Cr App R 420, to which we come shortly. At page 427A Lord Bingham CJ observed that section 16A of the Firearms Act 1968 was introduced by amendment "primarily to deter intimidatory use of an imitation firearm". The section itself refers to possession with intent to cause a person to believe that unlawful violence will be used.
48. At page 424B to E the court in Avis set out the four questions, the answers to which, would inform the proper approach to sentence in such cases.

"(1 ) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.

(2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.

(3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the more serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.

(4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearm offences or crimes of violence."

49. Here there was a real weapon, an air pistol, which the offender had no good reason to have. He had it in his possession with the intent of causing the victim to believe he would use it to commit violence on her. It was loaded and he deliberately discharged it at her causing her actual bodily harm. As the judge said in his sentencing remarks at page 16B: "The fact is that you shot a woman with an air pistol in the course of a dispute and a pursuit of her in the house. That is a serious matter."
50. The judge gave full credit for the pleas to these charges and rightly took into account totality, but even making these allowances, a sentence of 12 months for the offending on Counts 1 and 2 did not reflect the seriousness of the crimes committed against the victim in her own home on that occasion, as well as the violence which proceeded and followed the shooting.
51. We should add that we also see considerable force in the Attorney General's criticism of two of the other sentences. First, the sentence of perverting the course of public justice, (Count 3), a term of 4 months' imprisonment consecutive. The crime resulted in the withdrawal of a true complaint by the victim about the crimes committed against her. Second, the sentence for dangerous driving, Count 5, a term of 10 months' imprisonment consecutive in circumstances where he deliberately drove dangerously with the intention of hurting the victim in a crash in which she was in fact injured. But for the considerations of totality, the offender would have been sentenced to more severe sentences for these offences.
52. In summary, while on bail the offender had submitted the victim to sustained domestic violence involving intimidating her, threatening her, assaulting her, shooting her, putting pressure on her to withdraw her lawful complaint and thereby perverting the course of justice, deliberately hurting her in an act of dangerous driving and damaging her property. We grant leave.
53. The sentence could have been imposed in various different ways to reflect the overall criminality. In our view the starting point on Count 2 should have been in excess of 4 and half years, and with credit for his plea a sentence of 4 years. We substitute for the sentence of 12 months on Count 2 a sentence of 4 years. The other sentences will remain unaffected. The resulting overall sentence will be a term of 5 years and 8 months.
54. In the light of our review of this sentence, and taking into account the terms of section 35A and section 35B of the Road Traffic Offenders Act 1988 as amended, we vary the period of disqualification and substitute a period of 50 months of which the discretionary period is 24 months. To that extent, the sentences are varied. The other sentences will remain unaffected.