England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LUTON
HHJ FOSTER T20207220

		Royal Courts of Justice Strand London WC2A 2LL
		3 September 2024

MR JUSTICE BRYAN:

1. On 20 November 2020, in the Crown Court at Luton (HHJ Foster), the applicant pleaded guilty to breaching a non-molestation order.
2. On 3 June 2021, before the same judge, he was acquitted on a count of attempted murder and on the same day was sentenced to 20 months' imprisonment for breach of the non-molestation order.
3. On 10 July 2023, following a written application by the Crown dated 14 September 2022, there was a variation to the restraining order by an expansion to the area covered by the exclusion zone. The applicant was represented at that hearing before HHJ Simon by counsel.
4. The applicant renews his application for an extension of time of 741 days, for leave to appeal against conviction following refusal by the single judge on 9 July 2023 and also applied for an extension of time (approximately 15 weeks) in which to renew his application for an extension of time of 546 days, for leave to appeal against sentence following refusal by the same judge (also on 9 July 2023).
5. In terms of the alleged reasons why applications were not made on time or for a very long time thereafter, the applicant alleges he was lied to by his solicitors and the Probation Service, each of whom allegedly told him that he would have to serve his sentence and complete his probation period before appealing. He did so and then subsequently had become aware that this was not the case. Such allegations have not been substantiated and no good reason has been made out so as to justify the extensions of time sought. However, before refusing the extensions of time sought, we have examined the applications for leave to appeal against conviction and sentence lest they be considered to be of any merit.
6. Turning to the relevant facts. The applicant and complainant had been married for 12 years prior to the incident and had children together. From about 2018 however, the relationship deteriorated and the couple eventually separated.
7. On 28 August 2020, a non-molestation order was made in the Watford Family Court, with a condition that the applicant was not to use or threaten violence towards his estranged wife. It was served on the applicant on Saturday 29 August 2020 at an address in Watford.
8. On 29 September 2020, the applicant went to the area, jumped over a fence and entered the rear garden of the complainant's property. He smashed a glass in the back door, entered the house and followed her upstairs to one of the bedrooms. He pinned her down on the bed and attacked her. This included putting his hands around her neck and punching her in the face several times. According to the complainant, he also stuffed a facemask into her mouth and stabbed her with what she believed to be a penknife. The police arrived while the applicant was still present. He was arrested as he came out of one of the bedrooms.
9. As already noted, on 20 November 2020, in the Crown Court at Luton, the applicant pleaded guilty to breaching the non-molestation order, but he pleaded not guilty to attempted murder and was ultimately found not guilty of that charge following a contested trial.
10. In sentencing him for the breach of the non-molestation order, the Learned Judge identified that the behaviour of the applicant was appalling. It involved breaking into the house of his former partner, smashing the back door with a brick and then following her upstairs where he then attacked her. It was committed within weeks of a restraining order being imposed and, in accordance with the relevant guidelines, this had to be treated as an aggravating feature. The Learned Judge considered the offending to be in the top category for both harm and for culpability and amounted to a very serious breach that had caused serious distress, which was an aggravating factor justifying an increase from the 2-year starting point to 30 months' imprisonment, which he then reduced to take into account prison conditions as a result of the pandemic, his poor health and guilty plea, passing a sentence of 20 months' imprisonment.
11. In terms of his grounds of appeal against conviction, the appeal alleges that:

(1) He was misrepresented by his legal representatives. From day 1, he said he was not guilty by either offence and his counsel took no notice of what he said and chose to do his own thing. He was passed from barrister to barrister and was never given a proper opportunity to speak. His counsel would cut him off and tell him he was guilty of a breach when this was not the case.

(2) The only reason the applicant went to the house was to beg his wife to take him back - he had no intention of hurting her.

(3) He was never provided with a copy of the non-molestation order nor other document and had no proof of anything that has been written down by the solicitors or the courts.

(4) He had suffered a nervous breakdown and was dealing with severe depression and anxiety at the time. He had been prescribed medication that gave him hallucinations. He should never have been prescribed the drug Sertraline as it had turned him into a zombie. It had ruined his life and he had slipped through the net of the mental health system and had no idea what was going on.

(5) At court, he was stuck in a glass cage with defective headphones and due to the high amount of static he could not hear what was being said and what was going on. He placed his trust in his solicitors but they had lied to him. When he was told he was being sentenced he said he was not guilty. He wanted to fight it and launch an appeal but his solicitors (Reeds) told him that he had to complete his probation and his sentence first.

12. In relation to sentence, his grounds are as follows:

(i) This was his first offence and he was never issued with a copy of the non-molestation order.

(ii) He did nothing to deserve a restraining order; it was not issued legally. He was dealing with delusions and mental health issues at the time and he did not get a chance to provide an explanation.

(iii) It is presumed by this Court that as a result of (i) and (ii) he alleges that the sentence passed was either wrong in principle or manifestly excessive.

The applicant has also made further representation in correspondence in which he also complains about the variation to the non-molestation order on 10 July 2023.

13. In the light of the applicant's complaints about his former solicitors and counsel, a waiver of privilege was sought and provided and representations were received from his former solicitors and counsel that also included a provision of a copy of his proof of evidence.

No Respondent's Notice has been served but the prosecution has confirmed that a non-molestation order was served personally on the applicant on Saturday 29 August 2020 at an address in Watford.

14. We have given careful consideration to the proposed grounds of appeal against conviction and sentence but are satisfied that each is hopeless and, even had there been good reason to extend time (which there is not), the respective grounds are not arguable.
15. So far as the appeal against conviction is concerned, we agree with the reasons given by the single judge, which were as follows:

"I have considered the papers in your case and your grounds of appeal, including the further submissions you provided on 3 January and 10 February 2023. I do not consider it arguable that your conviction was unsafe. The evidence/comments from your legal team (three barristers and a solicitor) all indicate that you made an informed decision to plead guilty to the offence of breaching a non-molestation order – while contesting the charge of attempted murder – and at no stage indicated any doubt or unhappiness with that guilty plea. Your signed proof of evidence acknowledged that you knew you were in breach of the order, and set out details of how (even on your account) you had broken into your wife's house, pinned her to the bed and punched her in the face. The case papers disclose no evidence that you were wrongly advised, either as to your guilty plea or about the time for appealing. I therefore see no merit in your applications for permission to appeal against conviction or for an extension of time."

16. Equally, so far as appeal against sentence is concerned, we agree with the reasons given by the single judge which were as follows:

"I have considered the papers in your case and your grounds of appeal, including the further submissions you provided on 3 January and 10 February 2023. I do not consider it arguable that your sentence was wrong in principle or manifestly excessive. Your signed proof of evidence acknowledged that you knew you were in breach of the order, and set out details of how (even on your account) you had broken into your wife's house, pinned her to the bed and punched her in the face. The case papers disclose no evidence that you were wrongly advised, either as to sentence or about the time for appealing. It is clear from the transcript of the sentencing hearing that the Judge was well aware that you had no previous convictions and were suffering from health problems. A restraining order was clearly justified in the light of the attack you had made on your wife. I therefore see no merit in your applications for permission to appeal against sentence or for an extension of time."

17. We have nothing to add on the merits of the applications. There is no good reason for the extension of time sought in circumstances where each of the applications for permission to appeal against conviction and sentence is not arguable, and is, in fact, wholly without merit.
18. The applicant has served his sentence and accordingly, no loss of time order can be made. However, we make an order, under section 18(6) of the Prosecution of Offences Act 1985, for the applicant to pay the reasonable costs of the transcripts in this case in the amount of £84.84 in circumstances where we have found each of the applications to be wholly without merit.