England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 201703082/C2-201703084/C2 Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 20 September 2018

1. MR JUSTICE WILLIAM DAVIS: On 22 March 2017, in the Crown Court at Burnley, the appellant was convicted of two offences: attempting to administer a noxious substance so as to endanger life and cruelty to a person under the age of 16. He was sentenced on 9 June to concurrent sentences on each count. It was an extended determinate sentence, a custodial term of four-and-a-half years and extended licence of two-and-a-half years. The judge also made a restraining order in the duration which was 10 years.
2. He applied for leave to appeal against conviction. That was refused by the single judge. He has renewed, in writing, that application and we shall consider it. He requires an extension of time of modest degree. We shall grant the extension without considering in detail the merits of the application to extend.
3. The single judge did give leave to appeal against sentence and counsel, Mr Woodward, has appeared for him today. He did not appear in the court below.
4. The appellant has a son, the mother of whom is a lady named Marie Lonsdale. The appellant and Marie Lonsdale had a relationship. It broke down in May 2016. The breakdown was acrimonious. After the breakdown the son lived with mother. The appellant had some form of contact arrangement.
5. Pursuant to that, on 3 November 2016, the appellant had his son, by then aged 4, for the day. They did not return at the appointed time. Ms Lonsdale eventually managed to contact the appellant by telephone. She was not reassured. The appellant was crying and angry. He said he did not want anyone else bringing up his son. This was in the context of Ms Lonsdale apparently having a new partner. He subsequently sent a text saying: "We are going". That was the last Ms Lonsdale heard from the appellant. She had no idea where he was.
6. At about 11.30 that same evening the appellant telephoned 999 asking for an ambulance. He said that he had tried to commit suicide with his son. He said he was not going through with it.
7. As a result the police attended. They went to the car park of a country park outside Colne near Burnley. There was the appellant's car. There was black pipe fed into the partially open rear window. The gap between the window and the body of the car was sealed with tape. The other end of the pipe was on the ground near the exhaust pipe. The 4-year-old child was asleep in the front passenger seat. Over the course of the next few hours the appellant told the police at the scene, the custody officer at the police station and various members of hospital staff that the pipe had been connected to the exhaust with the engine running at a time when the child was in the car. He told a doctor at the hospital that he did not want his son to go back to the mother.
8. When interviewed formally at the police station he made no comment.
9. Investigation of his mobile telephone and/or computer showed that in the preceding week he had made Internet searches in relation to the harmful effect of diesel fumes.
10. At trial, the appellant did not contest the essence of the prosecution case in terms of what he had said to the police, the custody officer and hospital staff. His case was that everything he had said was untrue. The child had never been in the car when the engine was running. The whole thing was an elaborate ruse or set up intended to draw attention to his various grievances. The jury clearly rejected that account.
11. His grounds of appeal against conviction which are, with great respect to him, a little difficult to follow, it can be distilled as follows. First, there was a count added to the indictment, namely the count of attempting to administer a noxious substance, at the outset of the trial. The appellant argues that this was improper. The basis for this argument is, with respect to him, difficult to identify. The fact of the matter is that count 2 (as it became on the indictment) was an alternative to the full offence which was count 1. It seems to us that strictly speaking the count was unnecessary. The attempt plainly was a statutory alternative to the full offence. Be that as it may the count was wholly lawful. No injustice was done to the appellant.
12. The second ground, he argues that elements of his defence were withheld from the jury. This appears to be a complaint that the judge did not allow him to raise allegations against his former partner, Ms Lonsdale, to the effect that she had perverted the course of justice in quite different proceedings and that the police had acted in bad faith in some fashion. The judge was clearly right to refuse him permission to raise these matters. They were wholly irrelevant to the issue in the case, as raised by him, namely: did he expose his son to exhaust fumes or try to do so, or was it in fact all an elaborate ruse? There was no suggestion that credibility of any prosecution witness in the case was in issue.
13. Third, there were photographs before the jury that for some reason bore the legend "abduction". It is not clear to us why that was. The judge, when it was drawn to her attention, directed the jury in clear terms to ignore this legend. It had nothing to do with the case. There is no reason to suppose that the jury had any difficulty in following that direction. No unfairness resulted.
14. Finally, the appellant's complaint is that Ms Lonsdale's evidence, in so far as it was relevant, was read. It was indeed agreed at trial. This is hardly surprising; she said nothing contentious. He now says that he wanted her to be cross-examined. The cross-examination would have been irrelevant and inadmissible. It follows that that ground of appeal also has no merit.
15. We have read the judge's summing-up. It fairly and comprehensively laid out the case for and against the appellant before the jury. The convictions which resulted are entirely safe and the renewed application in relation to conviction is refused.
16. On sentence, the single judge gave leave simply in relation to the finding of dangerousness, which of course was a prerequisite to the imposition of an extended determinate sentence. In essence, the judge relied on three matters. First, in 2003, the appellant was convicted of criminal damage and affray. It is apparent that she understood, and correctly understood, that these convictions arose from the breakup of some earlier relationship. Second, the pre-sentence report indicated that the appellant still harboured animosity towards his erstwhile partner. The author of the report identified that the offence involved putting a very young child at risk in an attempt to inflict emotional and psychological damage on the erstwhile partner. As a result the author of the report concluded that there was a high risk of serious harm resulting from further specified offences. The third matter on which the judge relied was what she heard from the appellant himself. Although he was represented during the trial, by the time of the sentence he had dispensed with his representation. The judge therefore heard from him directly, which allowed her to reach a view in terms of his apparent attitude.
17. She said this in her sentencing remarks. Having identified that the appellant had no previous convictions at the age of 43 (strictly speaking not accurate) she said:

"I have read the psychologist's report. I have read the pre-sentence report. I have listened with care to you. It is clear from the medical report there are no mental health conditions that would trigger the Mental Health Act ... though you clearly have some issues.

It is clear from all the reports I have read, and indeed from your address to me, that you are still obsessed and blaming your ex-partner, Marie Lonsdale, for all of your troubles, and that is very, very concerning.

The elaborate nature of your plan ... coupled with the fact ... that you have no true regret or remorse for what you did, or empathy for what you put [the child] or indeed Marie Lonsdale in particular, though but still see yourself as the victim, ... everything about you is so self-involved with you as the victim."

18. On those matters the judge relied in order to conclude that the appellant was a dangerous offender, she found there was a significant risk of him causing serious harm to Marie Lonsdale and the child, by the commission of further specified offences.
19. In argument today Mr Woodward concentrates on that finding of dangerousness. He argues that since the time of sentence the appellant has had time to reflect and he has started to recognise that his acts were completely unacceptable. Mr Woodward has not had the advantage of the correspondence that we have received from Mr Turton, most recently on 11 August 2018, in which he continues to assert that there was police corruption and malicious prosecution on the part of Marie Lonsdale.
20. In respect of the submissions made by Mr Woodward, it seems to us that the proposition that Mr Turton has started to recognise the error of his ways is a submission that is not supported by any evidence. What Mr Woodward did submit was that Mr Turton's way of behaving is to act in completely the wrong way on a breakdown in a relationship. Clearly that is what happened here. The judge was entitled to conclude, it seems to us, that there was a significant risk that that would happen again, whether in relation to the relationship between himself and Ms Lonsdale or some future relationship.
21. True it is that Mr Turton, so we are told by Mr Woodward, is now engaging in courses in prison and is undertaking an Open University degree. That is to be commended. But the judge, in 2017, was faced with a man who, on the face of it, presented a significant risk of serious harm. There were ample grounds to reach that finding. This is a court of review of such a finding. There is no proper basis upon which we can find that the judge did not exercise judgment entirely properly in that regard. Whether Mr Turton will, at the appropriate time in the course of his extended sentence, be judged no longer a risk is a matter of course for the Parole Board. But we are entirely satisfied that there was absolutely nothing wrong at all with the sentence imposed by the trial judge and therefore we dismiss the appeal against sentence.

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