No: 2015/0946/A6 
Neutral Citation Number: [2015] EWCA Crim 1621
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Friday, 31 July 2015

B e f o r e: 
LADY JUSTICE SHARP DBE 
MR JUSTICE EDIS 

HIS HONOUR JUDGE PEGDEN QC
(Sitting as a Judge of the CACD)
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R E G I N A 

CHRISTOPHER MOORE (AKA NEWTON)
 
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Non‑Counsel Application

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J U D G M E N T
1.	MR JUSTICE EDIS:  Christopher Moore, who is also known as Newton, is now aged 28 years old.  On 20th January 2014 in the Crown Court at Preston he pleaded guilty to four offences of common assault contrary to section 39 of the Criminal Justice Act 1988.  On 28th February 2014 sentences of three months' imprisonment were imposed consecutively on each offence, totalling 12 months.  That sentence was suspended for 18 months.
2.	Section 39 of the Criminal Justice Act 1988 reads as follows:  
"39.  Common assault and battery to be summary offences.  
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both."
3.	Count 1, putting a person in fear of violence by harassment, and count 6, assault occasioning actual bodily harm, were ordered to lie on the file against the applicant on the usual terms.  Counts 2 to 5 had been indicted as offences of assault occasioning actual bodily harm, but pleas to section 39 offences were accepted.  Because the indictment contained counts which were triable either way, the summary offences under section 39 of the 1988 Act were properly included on the indictment by virtue of section 40 of the same Act which, by section 40(2) provides:  
"(2)  Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him." 
The maximum aggregate term that a Magistrates' Court may impose on any one occasion for more than one offence is six months, unless it is sentencing for two or more either way offences, in which case it is 12 months (see section 133(1) and (2) of the Magistrates' Courts Act 1980).  Amendments to change that position are pending but not yet in force.  It follows from this that the sentence of 12 months' imprisonment suspended for 18 months was unlawful and must be quashed.  
4.	The appellant requires an extension of time for 342 days in which to apply for leave to appeal against the sentence, his applications having been referred to the full court by the Registrar.  In circumstances of this kind the court will commonly grant long extensions of time necessary to correct unlawful sentences, an example of such a case where the principles which apply were explained is R v Thorsby [2015] EWCA Crim. 1, [2015] 1 Cr.App.R (S) 63.  We therefore grant the necessary extension.
5.	It is now necessary to turn to decide what sentence should be imposed instead of the unlawful term imposed by the Recorder.  
6.	The appellant and his victim were in a relationship which began in 2013.  Perhaps they still are.  When the relationship began she was a serving police officer, although by the time the appellant came to be sentenced in February 2014 she had resigned.  He moved in with her and the relationship rapidly became turbulent, involving violence from time to time.  
7.	The four offences for which the Recorder imposed the sentences occurred in the following circumstances.  In May 2013 the offence which gave rise to count 2 on the indictment was committed.  The victim was in the spare room of their house, keeping out of the appellant's way.  When he came into the room he grabbed her right wrist and bit it, causing indentation and bruising.  
8.	About four weeks later they took their dogs for a walk.  They had an argument.  The appellant dragged one of the dogs back to the car and got into the driver's seat.  The victim followed him.  Because he was not insured to drive the car she reached in through the window of the car to get the keys.  As she did this the appellant put the electric window up, trapping her arm and causing bruising.  This became count 3.
9.	On 25th June 2013 the victim was lying in bed when the appellant came into the room and punched her legs as hard as he could.  This caused her pain for some time afterwards.  That became count 4 on the indictment.  
10.	On 17th August 2013, the appellant and his victim were at home.  The victim was getting ready to go to her sister's wedding when an argument started, again in some way involving the dogs.  Whilst she was sitting on the sofa the appellant kicked and punched her.  He threatened to set fire to one of the dogs, causing the victim to sit in front of the dog's cage and to throw a glass of water over him.  He grabbed a pair of scissors and cut her fringe before taking hold of her nail polish remover and threatening to pour it over the dog and set fire to the dog.  That became count 5.
11.	When she returned from the wedding she reported these incidents to the police, making a full statement of complaint which appears to have resulted in his arrest, charge and remand in custody.  Later she retracted that statement and said that she did not want to give evidence against him.  
12.	By this time the appellant had already acquired a number of previous convictions.  These occurred between 2006 and 2012 and amounted to convictions for six offences.  In 2006 he committed an offence of harassment and a restraining order was made.  In October 2010 he was convicted of another offence of harassment, committed against his former partner, and was sentenced to two months' imprisonment.  Whilst serving that term he was convicted of an offence of doing an act of cruelty to a child and wounding or inflicting grievous bodily harm and was sentenced to a total of two years' imprisonment.  In May 2012 he received a further term of 10 months' imprisonment for an offence of perjury.  The Recorder sentencing him on the occasion with which we are concerned did so on the basis that this record of previous offending involved domestic violence.  
13.	A pre‑sentence report was obtained which revealed that he minimised his responsibility for his behaviour and had little awareness of the risk that he posed.  The report contained the opinion that the behaviour reflected on the indictment formed part of an ongoing pattern of domestic violence behaviour.  It opined that he posed a serious and imminent risk of serious harm to partners and children which was said to be very high.  The report recommended the imposition of a suspended sentence.  By the date of sentencing it appears that the appellant had been in custody for something over five months.
14.	The complainant wrote a letter to the judge stating that she wished to resume her relationship with the appellant.  The judge took that into account.  He also recited the history of previous convictions and noted that although there was no serious harm caused during the four incidents, that cumulatively they clearly crossed the custody threshold.  Because he had already served the equivalent of a significant prison sentence and because of the attitude of the victim, the Recorder said that he was able to pull back from an immediate custodial sentence and did so.  In determining the term of the suspended sentence, the judge said that he had given the appellant full credit for his guilty plea.
15.	We agree with the judge that these offences taken together clearly passed the custody threshold.  The Sentencing Guideline Council Domestic Violence Overarching Principles published by the Sentencing Guideline Council in 2006 says, in its introduction: 
"This guideline makes clear that offences committed in a domestic context should be regarded as being no less serious than offences committed in a non‑domestic context. Indeed, because an offence has been committed in a domestic context, there are likely to be aggravating factors present that make it more serious." 
Repeated bullying violence against a single victim exploiting a relationship is serious, even where no serious physical injury occurs.
16.	The attitude of the victim is dealt with in the same guideline which suggests that the fact that the parties wished their relationship to continue may be relevant.  It says this:  
"4.1 As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim.
4.2 There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence:
• it is undesirable that a victim should feel a responsibility for the sentence imposed;
• there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender;
• the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.
4.3 Nonetheless, there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue. The court must, however, be confident that such a wish is genuine, and that giving effect to it will not expose the victim to a real risk of further violence. Critical conditions are likely to be the seriousness of the offence and the history of the relationship."  
No doubt it was with this in mind that the judge decided to suspend the sentence taking into account the views of the victim, despite the worrying previous record of this appellant.  
17.	In our judgment, this guideline should not be read as an encouragement to take this course too readily.  Rather, it can be read as emphasising the need to exercise real care before imposing a more lenient sentence than would otherwise be the case because of representations on behalf of the victim.  Such care is clearly necessary and such a course should not be lightly taken.
18.	Events were to prove that this was a case where that course was not appropriate.  On 23rd February 2015, a year after the imposition of the suspended sentences with which we are concerned, the appellant was before the Crown Court again.  He had committed yet further offences against the same victim.  On this occasion he received concurrent terms of six months which were imposed for three offences of common assault and two of battery, and three months for two offences of criminal damage.  This means that before the second anniversary of the start of their relationship this appellant had been convicted of nine offences of violence against his victim.  This is despite the fact that he had been remanded in custody before both sentencing hearings and had not been at liberty for all of that period.
19.	On that occasion in February 2015 the suspended sentence was not imposed because new defence counsel, Miss Jane Dagnall, had realised that it was unlawful.  She therefore submitted successfully that it would not be right to impose it or any part of it.  The judge acceded to that submission.  On this occasion too the appellant was the beneficiary of support from his victim.  She refused to co‑operate in the prosecution again, which again caused the Crown to accept pleas to summary only offences, giving rise to the same limit on the court's powers as had existed in 2014.  The sentencing judge was concerned about the prosecution's approach to this case for reasons which should be obvious.  The Criminal Justice Act 2003 hearsay provisions were enacted in part to address this very problem.  However, the position was a fait accompli as far as he was concerned and he was limited to six months' imprisonment which he imposed.  He observed that one of the offences before him involved pouring petrol over the victim and standing over her with a lit blow torch in order to terrify her.  That offence can be considered in the light of the history of the earlier offences which included threats to set fire to the dog as well.  The sentencing judge on that occasion, Judge Newall, observed: 
"How anyone thinks that is a section 39 is beyond me.  If it had been properly charged and there had been a conviction, my own view is that that itself would have come very close to the threshold for dangerous offender sentences but we are not in that league for reasons which I do not understand in this case."  
The sentence imposed in February 2015 resulted in his almost immediate release.  The suspended sentence imposed on 28th February 2014 was suspended for 18 months and the appellant has been at liberty since very soon after the sentencing in February 2015.  The sentence is not therefore entirely academic, although its operational period of suspension will come to an end in late August 2015, a few weeks hence.  
20.	What has transpired since February 2014 is not of course relevant to the outcome of the appeal.  We have indicated that the cases taken together passed the custody threshold.  The maximum available term was six months but there had been guilty pleas for which full credit was given.  The Sentencing Guideline Council on Guilty Pleas considered precisely this situation at paragraph 5.7.  It provides that in this situation some modest allowance should normally be given against the total sentence for the entry of a guilty plea.  No doubt that is right in principle.
21.	The Sentencing Guideline Council guideline on new sentences under the 2003 Act deals with suspended sentence and says that before the decision is taken to suspend the sentence the period must be fixed.  Therefore in principle, in our judgment, these sentences should have been four months concurrent on all four section 39 offences suspended for 18 months.  The fact that this is inadequate in all the circumstances of this case is a product of the decisions taken by the Prosecuting Authority.  We are unable to judge whether the decisions taken in 2014 and again in 2015 were appropriate.  We do however echo Judge Newall's observations and are concerned, as he was, that justice may not have been achieved in this case.  No doubt the Crown Prosecution Service will consider at an appropriate level what lessons may be learned from this unhappy history.
22.	With no enthusiasm at all, we quash the sentences and impose instead a concurrent term of four months' imprisonment on each, suspended for 18 months, with effect from the date when they were imposed at the Crown Court, 28th February 2014.  Although these sentences are individually longer than the consecutive terms of three months imposed by the judge, taking the case as a whole the appellant is not more severely dealt with on appeal than he was by the court below and this result is within our jurisdiction.  To that extent this appeal is allowed. 
23.	LADY JUSTICE SHARP:  I wish to echo the words of my Lord in relation the court which now should be taken in relation to this case.  It is the view of this court that this demonstrates a particular problem in relation to the charging of offences of domestic violence which should be enquired into at the highest level.