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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 >> Scullion, R. v [2016] EWCA Crim 684 (17 May 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/684.html Cite as: [2016] EWCA Crim 684

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 May 2016

1. MR JUSTICE SOOLE: This is the applicant's renewed application for leave to appeal against sentence. On 29th October 2015 he was convicted of the offence of a threat to kill, contrary to section 16 of the Offences Against the Person Act 1861 and sentenced to an extended sentence of six years with a custodial term of four years.
2. On 14th February 2014 he was in the waiting area of Hereford Magistrates' Court before the final hearing of an application by Hereford District Council Children's Services Authority for a care and placement order in respect of his four month old daughter. She had been taken away from her mother at birth. The applicant wanted to care for her. The Authority did not think that a feasible option.
3. Also in the waiting area was the Authority's social worker on the case, Mrs Gray. The applicant told her that he had said goodbye to his daughter the day before. He then said: "This is not over." He then threatened to cause damage in the City of Hereford and said that after he had finished he would come after her and kill her and her husband. Wherever she lived he would find her, however long it took he would kill her. He had once looked for someone for 11 years. He spoke in a calm and quiet voice which Mrs Gray saw as confirming the reality of the threat.
4. This inevitably had a profoundly shocking and distressing effect upon Mrs Gray and has continued to do so. She told the jury that in the course of her 20 years in children's social work people had many times shouted and sworn at her, but no one had ever threatened to kill her.
5. Following the jury's verdict, his counsel Mr Oscroft, who appears before us today, asked the judge to order a pre-sentence report. The judge declined to do so. We are told and accept that the question of dangerousness was not explicitly raised by the judge in the course of mitigation and in consequence counsel did not make submissions on that point. That was unfortunate. Counsel has now had the opportunity to make those submissions.
6. Having heard mitigation, the judge concluded that the conditions for imposing an extended sentence were satisfied, namely that the offence was a specified offence, he was satisfied there was a significant risk to members of the public of serious harm, namely death or serious injury, physical or psychological, occasioned by the commission of further specified offences and that the applicant had been previously convicted of an offence listed in schedule 15B, namely an offence under section 18 of 1861 Act committed in 2002 for which he had been sentenced to three-and-a-half years' imprisonment and in any event the appropriate custodial term would be at least four years. He then imposed the extended sentence.
7. In reaching this conclusion the judge in particular took account of the applicant's conviction in 2002 and also in 2008 of an offence under section 20 of the 1861 Act for which he was sentenced to a term of four years three months (not far short of the maximum for that offence) and one year consecutively for the offence of witness intimidation. The judge also took account of his previous hostile conduct towards Mrs Gray in 2013, her vulnerable position as a care worker and the genuine fear in which she had been placed. There are also previous convictions of affray and of possession of an offensive weapon.
8. Mr Oscroft submits first that the judge should have made it explicitly clear that he was considering the question of dangerousness, and we have accepted that. In that case Mr Oscroft submits he should also have considered section 156(3) and (4) of the Criminal Justice Act 2003 which in such circumstances required the court to obtain and consider a pre-sentence report for that purpose, unless the court considers it unnecessary to do so. However, Mr Oscroft submits that there was no tenable basis for concluding that there was a significant risk to members of the public and for that reason this court should conclude under section 156(7)(a) that the judge was justified in not obtaining any pre-sentence report, albeit for the wrong reason, and accordingly this court should not itself obtain and consider a pre-sentence report.
9. Mr Oscroft's twin submission, as he describes it, is that the custodial term of four years was manifestly excessive in the light of the authorities.
10. In our judgment, for an offence of this chilling nature, with a threat to kill delivered calmly and deliberately, and with the background of serious offences of violence and intimidation, it was inevitable that the question of dangerousness should arise. We also consider that the judge, who had the advantage of seeing the defendant in the course of the trial, had more than sufficient evidence to reach the conclusion of dangerousness and that the obtaining of a pre-sentence report was unnecessary.
11. As to the custodial term, the decision of this court in Attorney General's Reference No 84 of 1999 demonstrates for offences of this nature on a plea of guilty a range between two-and-a-half and five years' imprisonment. That decision points to a number of factors which bear on the gravity of a threat to kill. In that decision, the Lord Chief Justice said that it may for instance be relevant whether the threat is uttered in a state of sobriety or drunkenness and whether there is repetition of the threat, and it is relevant to have regard to the vulnerability of the party threatened. Most important, however, in any case of this kind is the reality of the threat, the likelihood in the view of the party threatened that the threat will be carried out and the extent to which that party is put in genuine fear. It is very relevant to consider whether the party in making the threat is known to be violent and whether the party making the threat is known to have some grudge or animus or grievance which may cause him to act in the manner threatened.
12. In his sentencing remarks the judge specifically had that case in mind and evidently had those particular features in mind. As to vulnerability, he noted that this was a public sector service worker, working in a highly sensitive area of children's welfare. The reality of the threat was menacingly realistic and repeated calmly and quietly in the context of other threats. Mrs Gray was evidently put into genuine fear knowing that the applicant had a grudge against her. She knew of his record of offences. In so far as there was any mitigation, he acknowledged the emotional intensity of the day for the applicant, albeit, as Mr Oscroft properly recognises, that could provide no possible excuse for his behaviour.
13. In Mr Oscroft's powerful submissions made to us today, he emphasised the absence of a weapon in this case and also made the point that despite the extreme stress of this day, perhaps the greatest stress he could have in his life, there had in fact been no violence and that give an indication of the level of gravity and therefore of the limited risk that he posed. As to the custodial term, he distinguished cases where there was a contemporaneous threat, repeated threats or more specific threats. In our judgment, the feature here of a threat for the future, calmly and deliberately made in the context of what Mrs Gray knew about the applicant's character, does not make those other matters distinguishable; indeed it emphasises the gravity of the offence.
14. In our judgment, all these factors made this a particularly serious offence and there are no grounds for challenging the finding of dangerousness, the decision to give an extended sentence or the length of either element of that sentence. For these reasons, permission to appeal is refused.