England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2017

MR JUSTICE GREEN:


 


A. Introduction

1. The appellant pleaded guilty to two counts of making a threat to kill and assault occasioning actual bodily harm.
2. On 26 August 2016, the appellant was sentenced to an extended sentence of 6 years pursuant to section 226A of the Criminal Justice Act 2003 made up of a custodial term of 4 years and an extension period of 2 years. He was subject to a victim surcharge order.

B. The Facts

3. In December 2015, the appellant was released upon licence from prison. In February 2016, he met with the complainant in Barnsley town centre on a night out. It was the first time they had seen each other for approximately three and a half years. Towards the end of February 2016, the appellant and the complainant entered into a relationship but from the outset the appellant showed signs of controlling behaviour. He would, for instance, frequently check the complainant's mobile telephone and Facebook account.
4. The complainant planned a night out with friends. For a few days prior to this the appellant was up tight and unhappy. He objected to the clothes the complainant was intending to wear. On 8 April, he was in a bad mood and upon checking the complainant's telephone he was concerned that she had received a telephone call from a male friend. At all events, at 9.15 pm the complainant left home to meet friends in the town centre. The appellant remained in the property. During the evening he sent a series of abusive text messages to her.
5. She returned home at about 2.30 am to find the appellant awake. She made her way upstairs in order to use the lavatory. The appellant followed her with a glass of water in his hand which he then poured over the complainant's head. He refilled the glass and poured it once again over her. He was shouting at her, saying that she had left him on his own and failed to contact him all night. The complainant made her way into the bedroom. The appellant followed her and swept several perfume bottles from a dresser top onto the floor. He went downstairs and he obtained a long kitchen knife and returned upstairs. He held the knife to the complainant's throat, pressing it against her skin.
6. Shortly afterwards, however, he removed the knife and they both went downstairs. But over the course of the next 3 hours, the appellant angrily inflicted violence upon the complainant. He blamed her for his temper. He told her that she had "fucked his head up". On a number of occasions he placed his hands around her throat, applying considerable pressure to the point where the complainant felt unable to breath. She was genuinely in fear that he would kill her. The appellant at one point dragged her off the sofa by her legs onto the floor. He threatened to hit her over the head with an empty wine bottle but she managed to take that away from him. He picked up a DVD player and threw it at the complainant twice, on one occasion hitting her upon the head. He punched her around the head and body. He bit her nose, lip and arm.
7. Eventually, the complainant managed to break free and she ran from the front door but the appellant grabbed her as she reached the end of the driveway and pulled her back inside by her hair. Once inside he locked the door. He had knives in his possession. He told her that she was going to go nowhere, that he was going to kill her and spend the rest of his life in prison. The complainant attempted to calm the appellant down; she hugged him and told him that she loved him.
8. At about 5.30 am, the appellant went upstairs to collect his phone. The complainant opened the downstairs living room window and she jumped through it head first, landing on some broken draws in the garden. The appellant followed her through the window and he jumped upon her preventing her escape. But she managed to convince him to go back inside without her and then she fled to the address of a neighbour, where the police were alerted.
9. The injuries sustained by the complainant were photographed by the police and they were shown to the judge as part of the sentencing exercise.
10. The appellant was arrested and indicated that he was prepared to admit everything except holding a knife to the complainant's throat or false imprisonment. However, once the questioning commenced he gave no comment responses to questions in interview and he became extremely agitated. He stood up clenching his fists and he demanded to leave the interview room.
11. In a victim impact statement the complainant explained that she had suffered from domestic violence before and that she had recovered and endeavoured to rebuild her life. She said that she would do the same again but she had never been so frightened in all of her life and she genuinely feared that the appellant was going to kill her. She was frightened that when the appellant was released he would come looking for her and that her future and that of her son would be uncertain due to his behaviour. The complainant supported the prosecution.
12. Subsequently, the complainant issued a statement in which she said that she was reconciled with the appellant. She did not believe that prison was the right place for him. She stated that the appellant had not asked her to drop the charges and she had not been coerced into the making of the statement by any third party. She did not, however, retract the allegations against him.
13. The appellant has a lengthy list of 12 convictions for 19 offences. These spanned the period 2008 onwards. On 14 June 2013, at Sheffield Crown Court, the appellant was imprisoned for 5 years for burglary and assault occasioning actual bodily harm upon a previous partner. He was subjected to a restraining order protecting the partner from harassment and to a further order. He was released on licence in December 2015 just shortly prior to the events which have given rise to the present case.

C. The Sentence

14. The appellant came to be sentenced on 26 August 2016. At the hearing, the Recorder indicated that he would furnish the appellant and his lawyers with written reasons for the sentence that he intended to impose. He then imposed the sentence which is the subject matter of the present appeal.
15. On 29 August 2016, the Recorder issued reasons for the sentence. The reasons are detailed, lengthy and carefully crafted. He recited the relevant facts, including the appellant's history of previous convictions. He observed that the most recent of the offences included an offence of assault occasioning actually bodily harm which resulted in the appellant being subject to a restraining order made in perpetuity. The Recorder cited from the pre-sentence report, which included the conclusion that the appellant sought to justify his actions by playing down the seriousness of the charges and blaming his mental health rather than accepting responsibility for his conduct.
16. The Recorder noted that the assessment was based upon an assumption that the offending was unconnected to drugs or alcohol. However, the Recorder rejected this conclusion in the light of a report from a psychiatrist noting that the appellant claimed to have consumed 4 litres of lager and 2 litres of wine on the evening of the offence and the evidence of the arresting officer was that he was drunk when arrested.
17. The Recorder was influenced by the fact that the appellant was on licence for a similar offence committed against his former partner when the present offence was committed. In this connection, the Recorder noted the observations of the author of the pre-sentence report that the current offence reflected an escalation in seriousness and that there was therefore a high risk of re-offending in a violent manner if the appellant failed to engage with mental health services and failed to understand the triggers for his violent conduct. The appellant was assessed as a high risk of committing serious harm.
18. The Recorder set out a detailed analysis of the conditions precedent for an extended sentence under section 226A and under section 229 CJA 2003 in relation to dangerousness. In relation to the latter, the judge considered the circumstances of the index offences and whether that contributed to an emerging pattern of behaviour. He assessed the psychiatric evidence submitted to the court from a Dr Pawar dated 18 May 2016 which set out the appellant's long history of anger lapses from schooldays onwards. The judge concluded that the appellant was a needy individual prone to jealousy and insecurity whilst at the same time capable of over possessiveness and controlling behaviour. He set out his reasons for this conclusion and he endorsed the views set out in the pre sentence report that the appellant was a serious risk to the public.

D. Grounds of Challenge to the Sentence

19. It is now argued before us that the sentence was manifestly excessive. The following facts and matters are relied upon in this regard. First, there is the fact that the appellant pleaded guilty and it is said that there is no reason why full credit should not have been granted for the guilty plea instead of the reduced 20 per cent accorded by the judge.
20. Second, it is said that in the light of case law it was wrong to reach a sentence of 4 years for the offence of threats to kill. There was no other justification for an extended sentence of the sort imposed given that the appellant did not have relevant previous convictions. The case did not reflect a pattern of violent repeat offending. The offence had been committed following the appellant resorting to alcohol and drugs to cope with the grieving process following the death of his father. The appellant was engaging with mental health services and he had the ability to change. The appellant showed remorse.
21. In granting leave, the single judge observed that it was most unusual and contrary to current sentencing practices for a judge to fail to give reasons in public and only to supply reasons privately to the appellant's lawyers. It is said that given the retraction on the part of the complainant and the mitigation advanced on the appellant's behalf it was arguable that the custodial term of 4 years after a reduction for the guilty plea was manifestly excessive.

E. Discussion: Sentence

22. We turn now to consider the issues arising in the appeal. We start with the sentence imposed. There are two preliminary points to make. First, there is a degree of confusion as to the starting point taken by the judge and whether this was 6 or 5 years. In the written sentencing remarks both are mentioned. It would appear, in light of the fact that credit of 20 per cent was accorded for the guilty plea to threats to kill, that the Recorder had a starting point of 5 years in mind. This is consonant with the custodial term being one of 4 years. The second preliminary point is that there is no criticism made by the appellant of the analysis performed by the Recorder of the conditions for the imposition of an extended sentence pursuant to 226A CJA 2003. The issue arising is one of the exercise by the Recorder of his sentencing judgment and discretion.
23. In our judgment, the Recorder imposed a lawful sentence. The following facts are, in our view, relevant.
24. First, the present offence was committed literally weeks after the appellant was released from prison for offences which included domestic violence and whilst he was on licence. The present offence was both a repeat and an escalation of previous domestic violence. The offence involved sustained and significant violence over a period of hours involving the use of a knife and strangling and threats to kill, which in the circumstances were credible and which were advanced with serious intent. The violence involved multiple sites of injury. The outburst of violence was also the combination of longer term controlling behaviour.
25. Second, it appears from the evidence that the offence was fuelled by alcohol in the same way as the earlier incidents of domestic violence had been. There is no evidence before the court to suggest that the appellant can control his temper or refrain from use of alcohol and attempts to assist the appellant in this regard in the past have failed.
26. Third, we reject any submission, insofar as it is maintained, that the appellant cooperated with police. He was unresponsive and essentially belligerent. He did not admit the full extent of the alleged criminality.
27. Fourth, we can find no error in approach for assessment of dangerousness by the judge. The judge's conclusions were consistent with the findings arrived at by the psychiatrist and by the author of the PSR. On the evidence before the court, the judge was entitled to conclude that the appellant reflected a high risk of reoffending in a violent manner and that he was and remained a high risk of serious harm towards adults and with children who witnessed incidents of domestic violence.
28. Fifth, the judge granted a 20 per cent discount for the late tendering of the plea. We see no material or significant error in the approach adopted.
29. Sixth, we would observe that the complainant's statement, to which we have referred, carries little weight. She did not retract the allegations which were made and it is ultimately for the court to determine the appropriate sentence.
30. In these circumstances, we conclude that the sentence imposed was a lawful one for the judge to impose and we reject the appeal against sentence.

F. The Importance of Delivering Sentencing Remarks in Public

31. We turn finally to an issue which has troubled both the Registrar of Criminal Appeals and the Crown in their written submissions to this Court, which is the failure of the Recorder to issue his sentencing remarks in public.
32. We commend the judge for reducing his remarks to writing and for the care that he adopted in their preparation. We recognise that sentencing can frequently be complex and technical and the analysis which must occur in relation to an extended sentence might well be a good illustration of the sort of sentence where a judge feels the need to adjourn to consider carefully either sentence or how it should be explained. But where this happens it is crucial that the articulation of the reasoning takes place orally in public. This is to ensure that the public at large, which includes the press who might cover a sentencing exercise, are made fully aware of the reasons for the sentence passed. Transparency in the working of the justice system is integral to the maintenance of public confidence in that system. Transparency is equally critical in ensuring that the defendant knows exactly why the sentence has been passed and it facilitates consideration of possible grounds of appeal. For similar reasons it enables the Crown to know whether they should oppose an appeal and, if so, upon what basis and even whether they would wish to challenge a sentence as unduly lenient. We would draw attention to section 174(2) Criminal Justice Act 2003 which when referring to the duty to give reasons for sentences stipulates that such reasons must be given in "open court" and using "… ordinary language and in general terms". This is for the salutary reasons of policy that we have identified.
33. None of this, of course, prevents the increasingly common practice of the judge handing out printed copies of the sentencing remarks to those in court once they have been delivered. In the present case, we are told that the sentencing remarks were neither read out in public nor sent to the Crown. Indeed, we are informed by the Crown that they obtained copies of the judge's remarks only in the course of preparing for this appeal.
34. With respect to the Recorder, who otherwise clearly devoted considerable care and attention to the preparation of his remarks, this was a serious failure in good practice.