Holman, R. v

LORD JUSTICE MOORE-BICK: On 17th January 2006 in the Crown Court at Isleworth before His Honour Judge McDowall this appellant pleaded guilty to one count of false imprisonment and one count of harassment. On 17th February he was sentenced to 3 years' imprisonment in respect of the offence of false imprisonment. No separate penalty was imposed in respect of the offence of harassment. In addition a restraining order was made preventing him from contacting his victim, a Ms Davis, or certain members of her family. He now appeals against sentence by leave of the Single Judge.

The circumstances giving rise to these convictions arose out of a relationship between the appellant and Ms Davis. On 12th September 2005 the appellant went to Ms Davis' home to look for his passport. After she had allowed him into the house he started to behave in a strange manner, ranting about his passport. He took her keys from her handbag, locked the front door, removed the key from the back door which was already locked and pulled the telephone cord out of its socket. He grabbed hold of Ms Davis' arm and forced her upstairs where he proceeded to open cupboards and empty their contents. Understandably she was very frightened. He then took her downstairs and ended up sitting next to her on the sofa. Shortly afterwards she saw her daughter's boyfriend walking up the drive to the house and she motioned to him to help her. When the young man entered the house the appellant pretended that there was nothing wrong. Shortly after that Ms Davis' daughter returned home from work and at that point the appellant left the house.

On 12th October 2005 a police officer from the Community Safety Unit contacted the appellant and told him he should not make any contact with Ms Davis or any member of her family. Despite that, he made a number of telephone calls to her and also sent her text messages. He visited her sister's address twice and her parents' address once. He was arrested on 23rd October 2005 and promptly admitted the offences in the course of his interview.

Our attention has been drawn to a number of authorities relating to sentencing for the offence of false imprisonment, particularly when committed in the context of a past or present relationship between the offender and the victim. In Spence and Thomas (1983) 5 Cr App R(S) 413 Lord Lane C.J. pointed out that the offence of false imprisonment varies very widely and that some offences at the lower end of the scale arising out of personal relationships may not call for a sentence of any more than 18 months’ imprisonment and in some cases less. However, later authorities suggest that the appropriate penalty is likely to be somewhat higher.

In the case of Brown (1994) 15 Cr App R(S) 337 the appellant pleaded guilty to false imprisonment and theft. He had lived with a woman for some years before their relationship came to an end. He behaved violently towards her on two occasions and was sentenced to a suspended term of imprisonment. The appellant went to her house and forced his way in through a window. When the woman tried to escape he dragged her back into the house and held her in a bedroom with the door barricaded until the police arrived and forced their way in. He was sentenced to 3 years' imprisonment for false imprisonment with the suspended sentence activated consecutively. The sentence was upheld on appeal. However, in that case there were aggravating features, both in the form of previous misconduct towards the complainant and in the nature of the offence itself which caused her a high degree of fear and led to a continuing state of anxiety.

In the case of Hibbert [2001] EWCA Crim 2847, [2002] 2 Cr App R(S) 29, the appellant, a man aged 28, had known the victim for a considerable period of time. They met accidentally and began a relationship in the course of which they moved into a flat together. Following an argument the victim went out for an evening with a friend. When she returned home she found the appellant drunk and went to the bedroom locking the door behind her. The appellant kicked the bedroom door open, pushed her backwards and placed his hand over her mouth. The argument continued and the appellant again grabbed the victim. There was a short struggle and the appellant told the victim to go to sleep. He then lay down in front of the bedroom door preventing her from leaving the bedroom. She fell asleep and woke up after some hours finding the appellant asleep in front of the bedroom door. She wrote a note asking for help and pushed it out of the bedroom window. The appellant left the room on two occasions locking the door behind him. The whole incident lasted for about 13 hours before the appellant's former partner rang him and persuaded him to allow the complainant to leave.

Police then arrested the appellant, who admitted that he had detained the victim overnight. He was sentenced to three-and-a-half years' imprisonment. The sentence was upheld by this Court, although it is fair to say that the incident in that case had been prolonged and that the victim had been very frightened for her safety.

In Attorney-General's Reference No 2 of 2004 [2005] 1 Cr App R(S) 14, the offender, who was aged 21 at that time of the offence, was convicted of false imprisonment. He had formed a relationship with a young woman of about the same age whom he had met about three weeks before the offence. She went to stay at his flat but the relationship ran into difficulties and she left taking her belongings with her. They subsequently arranged to meet at a public house and returned to the offender's flat where an argument broke out. When the young woman tried to leave the offender prevented her from doing so by sitting astride her, pressing her throat and slapping and punching her. The assault lasted about 45 minutes. He then pulled the young woman into his bedroom, stripped her naked and handcuffed her to the bed. He committed further assaults whilst she was handcuffed. She remained handcuffed for about 6 hours until she was released by the offender. The sentencing judge sentenced him to a community punishment and rehabilitation order requiring 100 hours work and 2 years supervision. The Attorney-General asked the Court to review the sentence on the ground that it was unduly lenient. The Court agreed, stating that the appropriate sentence in that case would have been somewhere between 2 and 3 years' imprisonment.

Finally, we were referred to the case of Attorney-General's Reference No 25 of 2004 [2005] 1 Cr App R(S) 14. The offender pleaded guilty to one count of false imprisonment and asked for an offence of common assault to be taken into consideration. He had moved into the victim's house as a lodger having previously known her for some years. The victim went out with a male friend to celebrate her birthday and subsequently returned home with the friend. The offender became jealous. When the victim asked him what was wrong, he slapped her with his open hand and slapped her again when she struck him in return. The police were called and he was arrested.

The victim complained to the police that the offender had indecently assaulted her some days before and he was charged with that offence. He appeared at the Magistrates' Court and was bailed on condition that he did not enter the county in which she lived. Three days later the offender telephoned the victim and forced his way into her house, pushed another lodger out of the house and locked the doors. The victim tried to call the police but the offender tore out the telephone wires. He detained the victim until the police arrived about an hour-and-a-half later. He threatened to kill the victim and to commit suicide himself. He put the blade of a knife to her throat and another knife to his own throat. Eventually the victim was able to escape from an open first floor window. The offender was then overpowered by the police and taken to hospital.

The offender had various previous convictions for offences of dishonesty but none for violence. He maintained throughout that he intended no harm to the victim or her children. This was another case, therefore, in which there had been previous misconduct on the part of the offender in relation to the victim. It was also a case in which serious violence was threatened though little violence was actually employed.

The judge sentenced the offender to a community punishment and rehabilitation order with 100 hours work and 2 years’ supervision. The Attorney-General asked the Court to review the sentence on the ground that it was unduly lenient. Allowing the appeal the Vice-President, Rose LJ, said that, bearing in mind the very great anxiety which clearly must have been caused to his victim, if there had not been exceptional mitigating circumstances the appropriate sentence would have been of the order of 3 years' imprisonment following a guilty plea.

These authorities lead us to the conclusion that the appropriate sentence for a case of this kind, following a guilty plea, is between 2 and 3 years' imprisonment.

The judge in the present case described this, quite rightly, as a serious offence, but he did not think the appellant posed a significant risk of serious harm to the public so as to call for a sentence of imprisonment for public protection.

This appellant is a man of 47 years age. He has a problem with drink and drugs which sometimes cause him to behave irrationally. He had a moderate record of offending. Most of his recent offences have arisen out of relationships which become turbulent, resulting in his harassing and sometimes intimidating those with whom he had has been emotionally involved or their close relatives. It is a matter for particular concern that he has previous convictions for harassment and multiple breaches of restraining orders. The author of the pre-sentence report considered there was a high risk of his committing similar offences in the future as he becomes involved in new relationships.

In our view this was a serious offence which clearly called for a custodial sentence, but in the favour of the appellant it can be said that this was not an attack by a stranger. He was well-known to Ms Davis and although he behaved in an erratic and frightening manner he did not attempt to use violence against her. The ordeal as a whole did not last very long, perhaps no more than 30 to 45 minutes, and it appears to have had few lasting effects on her. We have no doubt this was a frightening experience for the complainant but we consider that the sentence was significantly too high following a guilty plea. We therefore quash the sentence of 3 years' imprisonment and substitute for it a sentence of 2 years' imprisonment. To that extent, this appeal is allowed.