Kavanagh, R. v

LORD JUSTICE THOMAS: The appellant was charged in 1997 with committing, within the jurisdiction of the Central Criminal Court, a public nuisance in that he had made hundreds of explicit sexual telephone calls to a number of different victims. The offence was said to have been committed between 1st October 2005 and 24th July 2007. He pleaded guilty on 25th July 2007 and was committed for sentence to the Crown Court. On 9th November 2007 at the Crown Court at Southwark he was sentenced by HH Judge Testar to a period of 2 years and 6 months' imprisonment, with time on remand to be taken into account; an Anti-Social Behaviour Order was made for 4 years, effectively dealing with the kind of offending for which he had been prosecuted. He appeals to this court by leave of the single judge.

The facts

The facts are broadly as follows. It is accepted by the appellant that he made hundreds of explicit sexual telephone calls between October 2005 and July 2007. The matter appears to have come to light when female staff at a gym in basement premises close to the appellant's home started to receive phone calls of a sexual nature. The appellant initially said he was carrying out a survey for a well-known retailer, and suggested that participation would lead to free samples of underwear being despatched.

He asked about the type and colour of their underwear. Further calls were made which became increasingly sexually explicit.

The staff initially found these faintly amusing but became worried when they persisted. It became clear to the recipients of the calls at the gym that the maker of the calls could see them because he described their clothing. This caused the staff concern and anxiety. Some days he made a number of calls and then there might be a period when he made no calls. Between February and July 2007 it was established that he made a total of 315 calls to the gym, and it was established he could see the gym from the balcony of his flat.

He was arrested on 24th July. His phone records were examined and it was established that he had contacted other women purporting to be carrying out a survey for the same well-known retailer. Some calls were terminated by the women before he became sexually explicit. He typically asked them the colour of the underwear they were wearing.

When the matter was opened before the learned Crown Court judge, it was opened on the basis that there had been 15,000 telephone calls shown by the records of the appellant's telephone. It appears that no attempt was made to go into the precise number of phone calls (which fell within the offence with which he was charged), it being accepted they were in the bracket of hundreds rather than thousands.

There was one other matter which was much more serious. There was a suggestion in a few witness statements before the judge that there may have been at least one occasion when a telephone call was made to a child. It appears, however, that the defendant denied that; the judge proceeded on the basis that he would not deal with any of this public nuisance on the basis that there were calls to teenage girls.

It is, we would observe, unfortunate that that course was taken, because obviously telephone calls to teenage girls, or anyone under the age of 16, would have taken this offence into a very different sentencing bracket. It is something that should have been gone into and, had it been gone into, it may well have been that the sentence which could have been properly passed would have been much higher than the sentence which we shall indicate was in the appropriate range for this sort of sentence. We deal with the case therefore on the basis that we are dealing with calls to adults and not anyone under the age of 16.

When interviewed, the appellant initially declined to comment but when he was told of the impact of the calls on the victim he admitted making them. He said that he masturbated while making the calls and they were made for his own sexual gratification. There were victim impact statements before the judge; it is without doubt that a number of the recipients of the calls found them disturbing.

The approach of the judge

The judge in careful sentencing remarks explained why he was passing the sentence he did. He stressed the importance of the effect that some of the women described. He, for example, pointed to someone who had received persistent calls and became worried that the appellant might be outside her house and felt unsafe. Another pulled the blinds down, locked the door and insisted her husband came home.

In approaching offences of this kind, the learned judge was right to take into account the significant impact which activity of this kind has upon the victim. However, on the other hand, it was right for the judge to take into account the fact there was a plea at the Magistrates' Court, the fact that he had no relevant prior offending (such offences as he had committed were some considerable time ago); that he had expressed genuine remorse; and that he was essentially a person who was a drug addict, being dependant on cocaine, and an alcoholic and had suffered this condition for the past 13 years, being a man of the age of 40.

The previous decisions of this court

In approaching the sentence to be passed on him for this activity, we have been taken to two decisions of this court. The first in Harley [2003] 2 Cr.App.R(S) at page 15, [2002] EWCA Crim 2650, that decision being given on 14th November 2002, and the decision of the court in Newton [2003] EWCA Crim 976, [2003] 2 Cr.App.R(S) 437, that decision being given on 3rd February 2003. Those cases considered very different facts. In the first, the number of calls was very considerable but there were strong mitigating factors and there was no threat or hint of violence. This court reduced the sentence that the trial judge had passed of 21 months to one of 9 months' imprisonment. The other case, Newton, we do not find helpful as it is so different from this case, involving threats of violence.

The relevance of the SGC Guidelines

We consider a court should now look at those cases in the context of the Guideline for sexual offences under the Sexual Offences Act 2003 that has been issued by the Sentencing Guidelines Council. The Guideline on sexual offences is an extensive code, and it sets out ranges of sentences for the large number of sexual offences under the Act. It, however, does not cover this type of offence as it is not an offence under the Act but at common law. We think it right however that where an offence is of a sexual nature -- and there is no doubt that this offending was -- we ought to try as best as possible to relate it to the Guideline. It is, we think, impossible for anyone to contemplate fitting in every offence into the guidelines issued by the SGC, but it is important that where an offence is not within the guidelines but is an offence similar to those within the guidelines, an attempt should be made to see how best to relate that offence to those within the guidelines.

We take two different starting points. The first is to look at, on the one hand, the guidelines in respect of sexual assaults, and in particular the bracket of offending for contact between naked genitalia of the offender and another part of the victim's body where the range is 6 to 24 months, and voyeurism which on the basic offence would attract a community service order but with aggravating features it can attract a sentence of up to 24 months.

It seems to us that the offence to which this appellant pleaded guilty is a much more serious offence than many offences of voyeurism, because it involves not only the invasion of privacy but contact which can, and did in this case, put the victim in fear. It therefore seems to us that in a case which, as we have made very clear, does not involve anyone under the age of 16, a starting point for a sentence would be one of between 15 and 21 months. The court would have to take into account the effect on the women, the number of calls, the period over which it was done and the kind of questions asked.

The appropriate sentence in this case

In this case we give full credit for the plea in question. We take account of the fact that there has been considerable remorse and the fact that there is no mental element and no serious risk of re-offending in the future. But this offender did put the women concerned in fear and he did make a significant number of calls over a longish period of time.

Doing the best we can on the facts as they are before us, and giving the defendant the benefit of the doubt that must exist because the facts were not properly gone into, we consider that the sentence passed by the learned sentencing judge was far too high and the appropriate sentence in this case should have been one of 12 months' imprisonment. To that extent, and to that extent only, this appeal allowed.

There is obviously no appeal against the ASBO, is there?

MISS MOUSELY: No, my Lord.

LORD JUSTICE THOMAS: Time on remand to count towards sentence.