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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fawthrop, R v [2017] EWCA Crim 1500 (9 June 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1500.html Cite as: [2017] EWCA Crim 1500

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 9 June 2017

LORD JUSTICE SIMON: The Attorney General seeks leave to refer a sentence passed on 3 April 2017 at the Crown Court sitting at Bradford by His Honour Judge Durham Hall QC under section 36 of the Criminal Justice Act 1988 as being unduly lenient.

The sentence that was passed was a 12 month community order with a 15 day rehabilitation requirement. The offender, Gemma Fawthrop, had previously pleaded guilty on 20 March 2017 at a plea and trial preparation hearing before the same judge to an offence of Racially Aggravated Pursuit of a Course of Conduct that put another in fear of violence, contrary to section 32(1)(b) of the Crime and Disorder Act 1998.

The charge related to a campaign of racial abuse and harassment against the offender's next door, Miss Ahktar, and Miss Ahktar's daughter, Miss Tahira, and other family members. The offender lived at number 12 Ennerdale Road and her victims lived next door at number 14.

On 16 May 2014 Nasreen Ahktar was in the back garden of number 14 with her 13 year old grandson. The offender, together with others, called Miss Ahktar a "black bitch". They said they would break her legs. When interviewed, the offender said that she had not been involved in an altercation. It was her aunt. She said her aunt had been called "a white bastard" by Miss Ahktar.

On 25 August 2015 Miss Tahira's young children were playing with water balloons in the back garden of number 14. A water balloon was accidentally thrown over into the offender's back garden. When one of the children went to retrieve it, the offender started shouting "Paki bastards". When Miss Tahira came out, the offender called her a "Paki bitch" and, referring to the incident on 26 December 2014, threatened to smash her face in. When spoken to by the police, the offender said that Miss Tahira's children intentionally threw water balloons into her garden when she was hanging out the washing. When the offender remonstrated with Miss Tahira to control her children, Miss Tahira called the offender "a white slag".

On 20 September 2015 between 7.00 am and 10.00 pm the offender made 60 to 70 abusive and threatening telephone calls to Miss Tahira's two mobile telephone numbers and her landline. The offender was served with a harassment warning.

On 6 November 2015, as Miss Tahira was getting into her car, the offender said, "You Paki bitch. You fucking bitch. Police can't do fuck all. We've already smashed your face in. We're gonna get you back." When spoken to by the police, the offender denied saying the words attributed to her.

On 26 May 2016, as relatives of Miss Tahira were getting into their car, the offender shouted at the relatives, "Look, it's those Paki bastards. Your days are numbered. I'm gonna get some people to pay you a visit and break your legs." Miss Tahira came out of number 14. The offender shouted at her, "You fat, black Paki bitch. I'll smash your face in. I'm going to get each one of your kids. You just wait and watch what I will do. I will get you all killed."

Later that evening, a vehicle pulled up outside number 14. The offender was recorded saying to the occupants of the vehicle, "Pussies, go knock on the door. If she comes out, I'll smash her face in. Yeah, they've got a dog. They're pussies. They lock the door from the inside. They're pussies, Ali. They've let the dog out now. Motherfuckers. Fucking pussies, your days are fucking numbered motherfuckers." There were further comments of a similar nature. When interviewed, the offender denied making any threats to kill or uttering racial abuse. She said the recorded comments were her letting off steam to friends.

On 4 July 2016, after Miss Tahira had got into her car and left, the offender shouted, "You fat fucking Paki bitch. You don't have to be Muslim, you dirty Paki." The latter comment was recorded on CCTV. When interviewed, the offender stated she was unsure whether it was her or her sister who made the comments. If it was her, it was a private comment made in her own garden that was not intended to be overheard by anyone.

On 15 September 2016 the offender and her friends were in the offender's back garden. She said toward Miss Tahira's CCTV which records audio, "We're off to get bacon butties".

A victim personal statement was available at sentence. Miss Tahira stated that she had a fear of going out alone. She feared for her safety. She suffers from sleeplessness and cannot get to sleep unless the CCTV is on.

The offender has no previous convictions. In 2004 she was reprimanded for attempted crime damage. In 2006 she was cautioned for assault occasioning actual bodily harm.

The offender was assessed as presenting a low risk of being reconvicted or causing serious harm to others. She has three children and works as a school cleaner, though she was suspended due to the court proceedings. She suffers anxiety and depression, also due to court proceedings.

The offender told the author of the pre-sentence report that she had been the victim of a catalogue of harassment at the hands of Miss Tahira. This included having her windows broken on two occasions, her car tyres slashed and fireworks pushed through her letterbox. She said it was ridiculous that she had used racist language to Miss Tahira, given that the father of her three children is Asian and she has Asian family members. She has since moved from the address.

It is necessary to say something about the hearing at which the offender pleaded guilty. On 10 March 2017 she appeared in the Crown Court for a plea and trial preparation hearing. She was arraigned and entered a not guilty plea. Directions were made for trial.

The judge then addressed Ms Downing, who appeared on that occasion as she does today, on behalf of the offender:

"She will appreciate that a plea in this case makes a difference in all probability to immediate custody.

I think I have to make it very clear, Miss Downing, that at the end of a three plus day trial, which will inconvenience your client regardless of all the other considerations that are so important, she will be in big trouble. You know that, but does she really realise the delicacy of the situation here?"

The prosecution advocate said:

"The Crown are actively considering if the matter proceeds to trial to put another count on the indictment, one of assault occasioning actual bodily harm. But of course if a plea was to be forthcoming then of course..."

The case was then put back in the list upon the application of the offender's counsel. When the matter was called on again, the offender was re-arraigned. She pleaded guilty to the Offence. No basis of plea was entered.

The matter was adjourned for a pre-sentence report. The judge stated that he wished a non-immediate custodial sentence to be considered. The report was available for the sentencing hearing on 3 April. The offence analysis made clear that the offender denied committing the offence and believed that she had been harassed by the victim.

The case was opened, albeit briefly. The opening referred to an assault on 26 December 2014 that was said to have taken place. The judge stated:

"There is some suggestion [the circumstances of the offence] may not be 100 percent one-sided, putting it gently, and there are features that would make difficult a finding of who was conclusively at fault in this case."

There was no plea in mitigation as such.

The judge observed that had the offence not been racially aggravated, he would have imposed a conditional discharge. Given the offence had a racial element, he increased the level of sentence to that of a community order. He declined to make a restraining order.

Mr Polnay, who appears for the Attorney General, identifies three aggravating and two mitigating features.

So far as aggravation is concerned, first, the offence was committed over a long period from May 2014 to September 2016. Second, the offence caused psychological harm. Third, the abuse took place in the presence of children.

So far as mitigation is concerned, he draws attention to the plea of guilty and the previous good character of the offender.

The maximum sentence available in respect of this offence is 7 years: see section 32(4)(b) of the 1998 Act. Mr Polnay accepts that there are no applicable guidelines and has referred the court to a number of cases which indicate the matters that bear on sentence for this offence: R v Liddle [2001] 1 Cr App R (S) 131 in relation to the non-aggravated offence under section 2 and section 4 of the Protection from Harassment Act 1997; R v Beglin [2002] EWCA Crim 1887 in relation to the nature of racially aggravated offending; and R v Kelly and Donnelly [2001] EWCA Crim 170 in relation to some of the non-exclusive factors which bear on the seriousness of the aggravated offence.

In conclusion, he submits that the sentence passed on the offender in this case was unduly lenient given the nature, length and seriousness of the offending.

For the offender, Ms Downing advances the circumstances in which the offender pleaded guilty and in order that she may do so, the offender has waived privilege. At a conference on 10 March, shortly before the PTPH, the offender gave clear and unequivocal instructions that she wished to plead not guilty, and that it had been she and her family that had been the victims of harassment. She intended to stand trial and call witnesses in support of her defence.

Following the not guilty plea, the judge gave an unsolicited indication that if she pleaded guilty at the present stage of proceedings, the sentence imposed would not be an immediate sentence of imprisonment. There was then a brief discussion between counsel and the judge about the circumstances and the matters of mitigation which justified such an approach. The case was then put back for the offender to consider her position in the light of this unexpected development.

The offender maintained her clear instructions that she was not guilty. Eventually she decided to plead guilty, motivated principally by knowing that if she pleaded guilty she would not be separated from her children. She was then re-arraigned and entered her plea.

Ms Downing invites us to consider a supplementary report on the offender prepared for this court by the National Probation Service. Without going extensively into the details of the report, certain themes emerge. First, she and her family were themselves subjected to harassment from her neighbours, which she reported to the police but which did not lead to police action. Second, she is in employment and has full-time care of three children under the age of 10. Third, she has no issues with alcohol or drugs. Fourth, her children are of mixed race, their father being Asian. Ms Downing relies on the definitive guidelines on the imposition of community and custodial sentences.

We have considered the submissions on behalf of the Attorney General and the offender. We should start by saying that what happened at the PTPH should not have occurred. The first general point is that it is emphatically not for a judge to embark on the process which occurred in the present case. Where a plea of guilty is offered after a promise of leniency from a judge, there is a real risk that it is not voluntary.

The procedure laid down in R v Goodyear [2005] 2 Cr App R 20 is designed to ensure that pleas are voluntary, first by requiring that the initiative for any indication comes from the defence. Secondly, by requiring the defendant to provide written authority to his or her advocate to seek the indication. Thirdly, by making the advocate personally responsible for (a) ensuring that the defendant does not plead guilty unless he or she is guilty and (b) informing the defendant that any indication given by the court remains subject to the entitlement of the Attorney General to refer an unduly lenient sentence to the Court of Appeal. Fourthly, by ensuring that any basis of plea is reduced to writing for agreement with the prosecution before the indication is sought. In this case, the offender was deprived of these safeguards.

The second general point is that the informal and inappropriate process in this case deprived the defence of an opportunity to indicate the basis on which the offender was entering her plea, although in the event, as we have noted, the judge accepted that there was at least fault on both sides.

We turn then to the sentence for the offence to which the offender pleaded guilty. Although there are no sentencing guidelines for an offence under section 32 of the Crime and Disorder Act 1998, there are clearly a number of matters which bear on the assessment of culpability and harm. Without seeking to provide an exhaustive list, the following are potentially relevant in the present case either due to their presence or absence.

So far as culpability is concerned, first, whether there has been disobedience to a court order. Second, the seriousness of the conduct. Third, the number of incidents in the course of the conduct. Fourth, whether others were used as part of the course of conduct. Fifth, the mental health of the offender. See, for example, R v Liddle, to which we have already referred, in relation to the non-aggravated form of the offence.

We note that in the Magistrates' Court sentencing guidelines there are two features which may indicate lower culpability; limited understanding of the effect on the victim and what is referred to as "initial provocation".

So far as harm is concerned, there is, first, the effect on the victim or victims, whether they need medical help or counselling, and second, the persistence in the offending, although this is likely to overlap with the culpability of the offender.

Once the court has assessed the culpability and harm, the court should indicate what sentence would have been passed under section 4 of the Protection from Harassment Act 1997, in this case, absent the aggravating factors which constitute the religiously or racially aggravated form of the offence under section 32(1)(b) of the 1998 Act. We note that the judge did this, indicating that he would have imposed a conditional discharge.

It is clear that the racially or religiously aggravated offence is to be treated as a more serious offence. The maximum sentence under section 4 of the 1997 Act is 5 years, whereas the maximum sentence for the racially aggravated form of the offence under the 1998 Act is 7 years. This is because racial and religious aggravation of the offence has an impact both on the victim or victims and on the social fabric of society: see, for example, R v Beglin, already referred to. It is unnecessary to go beyond these general observations for present purposes.

So far as the present case is concerned, first, like many so-called neighbour disputes, the judge was entitled to the view that there were two sides of the story. Secondly, the offender had not been convicted of any offence before. She was the mother of three children, she was in employment and she had moved away from the house. Thirdly, as we have noted, although it is no bar to the present application, the judge had intervened improperly by giving an unsolicited indication that if the offender were to plead guilty, she would not serve an immediate sentence of imprisonment. She acted on that indication against her inclination and, in the light of the present application, her interests.

This leads to our conclusion. In our view, a low level community sentence was lenient and was unduly so. However, in the unusual circumstances, including the mitigation to which we have referred, although we have concluded that the reference was rightly made and we give leave to refer, we do not intend to interfere with the sentence that was passed in this case. The sentence will remain as it was.