England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice The Strand London WC2A 2LL
		31 October 2019

LORD JUSTICE SIMON:

1. This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 198, for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave.
2. The offender is Chelsea Louise Roberts. She is now aged 26. She was sentenced by His Honour Judge Thackray on 6 September 2019 in the Crown Court at Kingston-upon-Hull.
3. On 12 August 2019, at a plea and trial preparation hearing, the offender pleaded guilty to a single count of blackmail, contrary to section 21(1) of the Theft Act 1968. Following the preparation of a pre-sentence report, she was sentenced to a term of four months' imprisonment.
4. Over a period of about a year, the offender told the victim (a former sexual partner) that she was pregnant by him; that she had given birth to a baby boy, who was seriously unwell; that the child had been adopted; and that he had eventually died. She demanded various sums of money, initially ostensibly to pay for a termination; then for things that were necessary for the child, which he paid, believing that she had been pregnant; and later on the basis that he was the father of the child. These were all elaborate lies. The offender had not been pregnant, and there was no child. When the victim showed any sign of resisting her demands, she threatened to give birth to the (fictional) baby, contrary to his wishes, and then to tell his family and his partner of the existence of the child if he did not keep paying. Later, when he confronted her with blackmailing him and said that he could report her to the police, she threatened to tell the police that he had raped her. In total, the offender obtained over £29,000 - not only the entirety of the victim's life savings, but leading him to incur significant debt.
5. By the time of the sentencing hearing, the offender was the primary carer of her two young children, aged nearly four years and fourteen months respectively, and she was expecting a third child.
6. We set out the facts in a little more detail. It was in 2014 that the offender met the victim, "SC", online. They began a casual sexual relationship, until she told him that she was pregnant with her former partner's child, and their casual relationship ended. Contact resumed in 2015, and they would meet for sexual intercourse from time to time until the summer of 2016.
7. In June 2016, the offender told him that she was pregnant and required money for a termination at a private clinic. He transferred a sum of £650 to her bank account in order to fund the termination. Thereafter, he considered that they drifted apart and he began a relationship with another woman.
8. However, in September 2016, some weeks after he had last had contact, they met again and had sexual intercourse. Within a few days, the offender claimed that she had become pregnant again as a result of this encounter and requested money for a termination at a private hospital. He agreed and transferred £600 to her.
9. Over the following weeks and months, the offender contacted him to say that appointments for the termination had been missed or cancelled; that she felt she could not go through with another termination; that she needed more money to book another appointment; and, as time had passed, that the procedure would now be more complicated and more expensive. She asked for further funds, which he paid. From time to time they would meet to discuss the situation. He could not tell if she was pregnant. When he showed any sign of not transferring the requested monies, he would be told "Well, if you want a child …", and words to that effect. He felt pressurised and transferred more and more money to her, fearing that she would not go through with the termination if he did not. He did not tell anyone else about the pregnancy or the demands for money.
10. At the beginning of 2017, he spoke to the offender about the pregnancy. She said that a further medical appointment had been made and that she hoped that the pregnancy would proceed, as she wanted to have the baby. A short time later she told him that the baby had been "saved". She then claimed to have given birth to a baby boy, who was critically ill. This was all a lie. On this occasion, she had never been pregnant.
11. Following the purported birth, the victim struggled to obtain information from the offender about the child. He was told that it was a boy, that he was alive, and he was given a name. There were further requests for money for general expenses related to the baby, which the victim paid.
12. In March or April 201, the offender indicated that she intended to have the child adopted once he was well enough to leave hospital. The victim asked for pictures of the child. None was forthcoming. The purported adoption date went back from August, to September, then October 2017, when the offender told the victim that the child had been placed with another couple with the assistance of Social Services. The victim had not told his partner or his parents about the child. If he said that he did not have the money, or questioned why she wanted or needed it, the offender made threats that his family and/or his partner would be told about the child. Later, he confronted her with the suggestion that the baby did not exist and that he was being blackmailed. He said that he could go to the police. The offender responded by saying that she would "tell them what you did" and "... how you took advantage of me and raped me when we were together".
13. The victim's partner began to receive Facebook messages from an anonymous account. This had been set up by the offender in order to show the victim that the offender could contact his partner if she wanted to. No reference was made to the pregnancy or the child, but the victim took the messages as re-enforcements of the threat.
14. In mid-November 2017, the offender told the victim that the child had died because of heart problems, and that she and the adoptive parents were planning the funeral. She demanded more money, which the victim paid.
15. Between September 2016 and November 2017, the victim transferred a total of £29,800 to the offender. This was his life-savings. He then took out payday loans in order to meet his own expenses.
16. There were occasions when the offender said that she would pay some of the money back. However, she failed to attend pre-arranged meetings and, having written post-dated cheques for £5,000 and £15,000, later said that there were insufficient funds in her account for them to be honoured.
17. The offending was discovered when the victim's partner found messages on his telephone about the financial transactions. The police were contacted. At the time he made his initial witness statement, the victim was still in debt, and he still did not know whether or not the child had ever existed.
18. The offender was not interviewed until 5 May 2018. When interviewed, she admitted all of what the victim had said had happened and the falsity of what she had told him, although her factual account was slightly different as to how matters had started. She said that shortly after he had sent her the original £650 in June 2016, she had discovered that she was not pregnant. However, she discovered that the victim had started a new relationship. She was hurt by this discovery, and decided not to tell him that she was not pregnant after all and to keep the money. Thereafter, she had found it easy to obtain more money from him. She had spent the money on herself, her child, her home and going out. All the money had all been spent. She was very remorseful, and wanted to find a way to pay the victim back.
19. The offender first appeared in the magistrates' court on 11 July 2019. Her guilty plea was indicated, but the question of any basis of plea would need to be resolved once a transcript of her interview was available. She was arraigned and pleaded guilty at the plea and trial preparation hearing on 12 August 2019. There was in fact no basis of plea.
20. The offender had no previous convictions. In 2013, she was cautioned for an offence of theft (from a dwelling); it arose from a dispute over money going missing from her father's house.
21. There was a pre-sentence report, dated 3 September 2019. It was clear from her comments that the offender had thought that her relationship with the victim was more serious than he had described it. She had been hurt and upset at discovering that he had started a new relationship. She had been resentful and had felt pressurised by him into terminating the previous pregnancy. The author of the report concluded that these feelings of hurt, resentment and jealousy were the main drivers behind her offending, rather than money (which she did not appear to need). As the offending snowballed following the initial lie about her ongoing pregnancy in order to maintain a hold over him, the offender said that she had looked for ways to stop what she was doing. However, the author of the report noted that there was no evidence of this. A number of opportunities to end the blackmail had presented themselves, but the blackmail had continued and the amounts demanded had increased. The offender presented as remorseful throughout her interview.
22. The pre-sentence report also set out her current domestic circumstances. She had two children, then aged 3 (almost 4) years and 14 months, with whom she lived in a housing association property. She was a full-time mother and was in receipt of Universal Credit. She was expecting a third child in December 2019. She was in contact with the father of her eldest child, and he was aware of the proceedings. She was in an on-off relationship with the father of her youngest child and her unborn child, and at the time of her interview with the Probation Service, she had not told him about the proceedings. She had no other family support; her mother had died when she was 10 years old, and she had become isolated from her father and grandparents. She was distressed about what would happen to her children, but had not made any clear provision for their care, should she be given a custodial sentence. After the interview, she informed the author of the report that the respective fathers had agreed to take custody of their children if required. The author of the report pointed out that this meant that the siblings would be separated.
23. The author of the report was very concerned about the offender's emotional wellbeing, particularly in the event of a custodial sentence. She had been prescribed antidepressants, and had shown recent signs of having self-harmed; there were marks on her arms which she tried to hide. The Community Midwifery Team had reported that her pregnancy was high-risk, and that she might not be able to carry the baby to term.
24. She did not present with any prominent pro-criminal attitudes, although the author of the report highlighted a number of features of the offending which gave cause for concern. Nevertheless, the offending appeared to be out of character and underpinned by circumstances which the author judged were unlikely to be repeated if support and interventions were put in place at sentence. There was a low likelihood of re-offending. Should the court wish to impose a non-custodial sentence, the author of the report suggested a community based disposal with a Rehabilitation Activity Requirement of up to 30 days.
25. A Victim Personal Statement was before the court, in which SC said that he was most affected by the fact that the money which had been taken could have been spent on his own son, who was now six months old, rather than on the fictional child created by the offender. All the money he had saved from working since he was 17 had gone. He had been saving to put down a deposit on a house. All such plans were now massively delayed. Aside from the financial consequences, he had suffered "a year of misery", dreading waking up in the morning to missed calls, emails and messages from the offender. It had put a real strain on him, on his partner (because of his changed behaviour and the misery caused by the random messages from strangers that she began to receive), and on their relationship. The effects lasted long after the blackmail had ended. He had had to pay off loans, and it had affected both his mental and physical wellbeing.
26. In passing sentence, the judge remarked that blackmail was rightly regarded by the public with loathing and contempt. He noted that it was not simply the financial impact of the £29,000 paid to the offender, but a year of misery and trauma caused to the victim. Against that, he noted the contents of the pre-sentence report, the absence of previous convictions, the fact that the offender was a single parent with the care of two young children and was expecting a third, her mental health issues, her remorse, and the full credit to which she was entitled for her plea of guilty. The judge continued:

I have considered the sentence that would have been imposed but for the fact that you have two young children and are expecting another. The least sentence in those circumstances that can be justified, having regard to the aggravating and mitigating factors, would have been 18 months following a trial, leading to a reduction of 12 months because of your plea. Because of the fact that you are a single parent of two young children and are expecting another child, I reduce that to six months after a trial and four months on a plea, but it must be, for the reasons I have given, an immediate custodial sentence.

27. It appears that the judge had double-counted the mitigation of the offender being a single parent with two young children, expecting a third, first to reduce from a notional starting point to eighteen months, and then to make a further reduction from twelve to six months for the same reason.
28. Miss Ledward, who appears for the Solicitor General, referred to a number of cases which we will consider later in this judgment. She submitted that there were numerous aggravating features which made the offence more serious. First, the threats and demands were persistent. Second, the offending took place over a considerable period (over a year). Third, the sums obtained were substantial when compared to the resources of the victim. Fourth, the threats were based on an entirely false story which was capable of causing, and did cause, great distress: the pregnancy, the birth, illness and death of what the victim believed to be his child. Fifth, the threats also included a threat to make a false allegation of rape. Sixth, the threats caused distress not only to the victim but, if put into effect, would have caused distress to those close to him.
29. Miss Ledward's overarching submission was that the judge's starting point was significantly too low and should not have been less than four years' custody, before credit was given for mitigating factors, of which she acknowledged there were a number: first, the offender's lack of previous convictions; second, her difficult background and history of depression and anxiety; third, her remorse; fourth, full admissions in interview and the delay in bringing the matter to court between her admitting the offence in interview in May 2018 and the first appearance in court in July 2019; fifth, the fact that she was the primary carer of two young children and was expecting a third; and sixth, her guilty plea at the earliest opportunity.
30. For the offender, Mr Genney, in cogent and realistic submissions, accepted that the sentence was not only lenient, it was unduly so. However, he laid emphasis on those points of mitigation identified by the Solicitor General and on the fact that the offender had been assessed as being at a low risk of re-offending, as well as the circumstances of the offending being unlikely to be repeated. In his oral submissions, he submitted that the crime was not entirely generated by greed. The pre-sentence report referred to the relationship with the victim which had soured, that she was motivated by hurt and jealousy and could not handle the breakup. He accepted that the offender had largely preyed on the victim's good nature and that there was discreditable conduct in the final threat to say that the victim had raped her. He submitted that it was an important consideration that she was the mother and carer of young children, aged 4 and 16 months, and that her third child was due in December. These were important sentencing considerations in light of R v Petherick [2012] EWCA Crim 2214; [2013] 1 Cr App R(S) 116. Finally, he pointed out that the offender was released on home detention curfew on 7 October 2019. He argued that returning her to prison would be wholly disruptive of both her and her family life, and particularly to the lives of the children.
31. We should add that we have seen a favourable prison report from HMP New Hall; a letter from the offender; and supportive letters from her grandmother, from a friend (Emily Morill); from her partner (Steven Mattinson), who has been looking after the children and who speaks of his own difficulties and anxieties; and an email from his father (Rob Black). It is unnecessary to elaborate on most of their contents. We have taken them into account. However, we note that the burden placed on Steven Mattinson in looking after two young children has been considerable. He found it extremely hard to adjust to his new circumstances and had to change his hours of work. He has spoken to his employer who has told him that his position may be reconsidered if his hours need to be reduced again. This is a matter of materiality when we come to consider how the Reference should proceed.

Preliminary

32. We start with a few general observations about the crime of blackmail and the court's approach to sentencing. The maximum sentence for the offence is a term of fourteen years' imprisonment. It has been repeatedly said in judgments of this court that blackmail is an ugly and vicious crime. In R v Hadjou (1989) 11 Cr App R(S) 30, Lord Lane CJ, giving the judgment of the court, characterised the offence in a striking phase as "an attempted murder of the soul", and one for which the courts always impose severe, deterrent sentences. Part of the reason is that the threat to disclose discreditable information, or information that the victim does not wish to be disclosed, creates "enduring fear, ever present anxiety and fear of discovery which gnaws away at him for long periods": see R v Greer and Greer [2005] EWCA Crim 2185; [2006] 1 Cr App R(S) 93 at [8]. However, there are no Sentencing Council guidelines for the offence of blackmail, and the reported cases are generally fact specific: see R v Ford [2015] EWCA Crim 561; [2015] 2 Cr App R(S) 17 at [15].

Other Reported Decisions

33. Miss Ledward referred us to a number of other cases: Attorney General's Reference No 40 of 2002 (R v Collard) [2002] EWCA Crim 2219; [2003] 1 Cr App R(S) 98; R v A [2007] EWCA Crim 245; [2007] 2 Cr App R(S) 93; Attorney General's Reference No 67 of 2007 (R v Graeme W) [2008] EWCA Crim 2878; [2008] 1 Cr App R(S) 92; and R v Scott M [2008] EWCA Crim 1915; [2009] 1 Cr App R(S) 88. Although we have considered these cases, they are primarily examples of the different ways in which the crime of blackmail can be committed, more of which can be found in Blackstone 2020 at paragraph B5.49. They do not throw great light on the appropriate sentence in the present case.
34. There are two further cases to which Miss Ledward referred, which do bear further consideration. The first is Attorney General's Reference (R v Mincher) [2016] EWCA Crim 1528; [2017] 1 Cr App R(S) 12. In that case, giving the judgment of the court, Hallett LJ, having referred to Collard and Graeme W, observed at [19] that those decisions suggested "a very approximate bracket of four to at least eight years". Second, the case reported as R v Jamie Lee Pickering [2019] EWCA Crim 936, (which was in fact an Attorney General's Reference), Miss Ledward described this as a case where a suspended sentence was found to be unduly lenient and an immediate custodial sentence of three years' imprisonment was imposed. That is an accurate description as far as it goes. But the blackmail was associated with two serious sexual assaults and the court at [40] noted that "even if matters had ended after the second sexual assault, a sentence of immediate imprisonment would undoubtedly have been necessary".

Factors Material to the Sentencing Approach in the Present Case

35. We set out these factors as follows:

(1) The relationship between the amount of money demanded and the means available to the victim to pay it: see Ford (above) at [17]. Here the offender obtained substantial sums by her crime (over £29,000) and exhausted the means of her victim, who lost his entire life savings.

(2) The psychological harm done and intended to be done: see Ford at [17]. In the present case, the offender intended to exert the maximum pressure on the victim: the false stories, her pregnancy, the birth, illness and death of what he believed to be his child caused distress and were intended to do so. The menaces (to use the language of the statute) culminated in the threat to make a false allegation of rape. In addition, the harm caused by her offending went beyond its effect on SC.

(3) The time over which the blackmail takes place and the persistence of the demand. If the blackmail takes place over a significant period of time, it is likely to be regarded as more serious than the offence committed on a single occasion, although a single demand with menaces may attract a lengthy sentence, depending on the circumstances: a four year starting point in R v Murphy [2019] EWCA Crim 438; [2019] 2 Cr App R(S) 13, at [12] and [13]. Here the offending took place over a period of more than a year and was persistent.

36. To be weighed against these considerations in the balance was the mitigation:

(1) The offender's lack of previous convictions.

(2) Her history of depression and anxiety.

(3) What is accepted to be her genuine remorse (although her motivation was plainly greed), reflected in the full admissions in interview in May 2018.

(4) The delay in bringing the matter to court. The investigation began in November 2017. She made full admissions to the police in May 2018; and her first appearance in court was in July 2019. There is no explanation for this wholly unacceptable delay.

(5) The fact that she was the primary carer of two young children and is expecting a third.

(6) Her guilty plea at the first opportunity.

Sentencing Primary Carers

37. In Petherick (above), giving the judgment of the court, Hughes LJ (as he then was) set out at [15] to [25] general guidance on the proper approach to sentencing offenders who are the sole carers of dependent children. Where a sentence lies on the cusp of custody, the balance is likely to be a fine one, and the interference with family life can sometimes tip the scales and mean that a custodial sentence, otherwise proportionate, may become disproportionate and therefore inappropriate: see [22]. However, the likelihood of interference with family life inherent in a sentence of immediate imprisonment being disproportionate is progressively reduced the graver the offence: see [23]. Where custody cannot be avoided, the effect on children may or may not afford grounds for mitigating the length of sentence. "There can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges": see [24].

"Double Jeopardy"

38. This is a consideration which may be material when the court is considering questions of undue leniency and the possibility of returning an offender to custody.
39. In Attorney General's Reference Nos 14 and 15 of 2006 (R v French and Webster) [2006] EWCA Crim 1335; [2007] 1 Cr App R(S) 40, this court gave guidance on what is referred to as "double jeopardy" in the judgment of the court given by Lord Phillips of Worth Matravers CJ at [59] and following:

59. … In this jurisdiction the practice of giving a discount from what would otherwise be the appropriate sentence to reflect double jeopardy is well established where this court increases a sentence on a reference by the Attorney General. The range of discount is wide, generally lying between 12% and 30%.

60. Having regard to double jeopardy is but one aspect of the task of this court when considering, in the exercise of its discretion, whether and how to intervene where an unduly lenient sentence has been imposed. Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, we consider that it accords with justice that, when substituting a weightier sentence, this court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having his sentence re-opened and increased. The degree of distress and anxiety and thus the size of the discount will depend on the facts of the particular case.

61. The distress and anxiety is likely to be particularly great where the decision of this court results in a defendant being placed in prison where originally no custodial sentence was employed, where a custodial sentence has been completed, where the defendant is young and immature or where the defendant was about to be discharged from prison. In all of these cases the distress and anxiety caused by the double jeopardy is likely to be significant when weighed against the original offending. The authorities show that in such circumstances discounts for double jeopardy tend to be granted that are near the upper end of the range.

40. In Attorney General's Reference No 45 of 2014 (R v Afzal and Malik) [2014] EWCA Crim 1566 at [19], this court considered the practice of not always referring to the "double jeopardy" principle in cases where a sentence was increased on the application of the Attorney General. In giving the judgment of the court, Lord Thomas of Cmwgiedd CJ said this:

19. … It reflects changes that have occurred in our sentencing regime, including:

(1) As a result of the work of the Sentencing Guidelines Council and of the Sentencing Council, there is much greater clarity and uniformity in relation to sentencing for most offences. The starting points and ranges are set out in clear, comprehensive guidelines.

(2) Where a judge has departed from those guidelines without explanation or good reason, it should be readily apparent to the advocate advising an offender that the sentence might be referred to this court. Advocates no doubt advise of that risk.

(3) Rapid consideration is given to any sentence by the Attorney General so that it is quickly referred to this court.

(4) This court is more conscious of the position of victims than it was in 2006.

41. So far as this offender is concerned, there are no applicable guidelines for the offence. The offender had no responsibility for the sentence she received. The offender has served the custodial part of her sentence. The court must, therefore, have regard to the distress and anxiety of the offender as a result of having her sentence re-opened and increased. The amount of the discount depends on the facts, but has been historically within the range identified in French and Webster.

Conclusion

42. Keeping these matters in mind, we have reached the following conclusions. The sentencing judge's starting point of eighteen months' imprisonment for this offence was significantly too low; and the ultimate sentence of four months' imprisonment was unduly lenient. The offending, with the serious features we have identified, called for a starting point of the order of five years' imprisonment. In view of the mitigating factors: the offender's lack of previous convictions; her mental state and background; her genuine remorse, which we accept went beyond the plea of guilty; and the unaccountable, or at least unexplained, delay in bringing the matters before the court after she admitted her crime, called for a reduction in sentence to a term of four years' imprisonment; and, with full credit for the guilty plea, a term of two years and eight months' imprisonment should have been imposed.
43. The question then becomes that identified by the court in French and Webster: to what extent should the court take into account that the offender has now been released from custody and the application of the principle of "double jeopardy": the distress and anxiety of being returned to prison, having been released, and the extent to which this calls for a further adjustment.
44. We also bear in mind that it is important not to lose sight of the impact on the victim, and that there has been no delay in referring the matter to this court by the Solicitor-General. Nevertheless, it is clear from what has been said by the offender that her stress and anxiety about the Reference and the position in which she finds herself is very real. In our view, it justifies reducing the term by 25 per cent to a term of 24 months' imprisonment.
45. It is at this point that two further factors fall to be considered: first, that she is the primary carer of her children; and second, the effect of the definitive guidelines on the imposition of community and custodial sentences. The two factors are interlinked. So far as factors indicating that it would not be appropriate to suspend the sentence, the offender presents no risk or danger to the public; nor has she any history of poor compliance with court orders. However, as we have made clear, appropriate punishment for this crime can only be achieved by immediate custody.
46. We turn to factors indicating that it would be appropriate to suspend the custodial sentence: there is a realistic prospect of rehabilitation; there is the strong personal mitigation to which we have referred; and immediate custody would have a direct impact on others (her children).
47. Weighing these matters together, we have concluded that it would be appropriate in this case to suspend the sentence of 24 months' imprisonment, which we intend to substitute for the term of four months' imprisonment. In addition, we will impose a Rehabilitation Activity Requirement of up to 20 days within the period of two years of the suspended sentence.
48. We should add, if it is not already apparent, that this case turns on its own very unusual facts and should give no comfort to the generality of blackmailers who come before the court to be sentenced.
49. We would normally expect that counsel who appeared for the defendant at trial in a case that is referred to this court to be here in order to represent the client. We do, however, understand the reason why trial counsel was not here.