Ashworth, R v

THE RECORDER OF SWANSEA: On 29th September 2008 in the Crown Court at Manchester Minshull Street, at a preliminary hearing, this appellant pleaded guilty to false imprisonment (count 1) and to criminal damage (count 3). On 1st December 2008 before His Honour Judge Thomas QC he was sentenced on count 1, false imprisonment, a serious offence specified in schedule 15 to the Criminal Justice Act 2003, to imprisonment for public protection, with a minimum term of 2 years specified. In relation to count 3, the count of criminal damage, there was no separate penalty imposed and a not guilty verdict was entered on count 2, an allegation of common assault. The appeal against sentence is by leave of the Single Judge.

These offences were committed on 20th September 2008 in the family home, where the appellant, aged 24 then and at sentence (he is now 25), resided with his parents. There was, however, a considerable background of offending by this appellant which included offences committed against his parents, his mother in particular, and also in respect of their property.

In September 2001 he was convicted of affray. He was then aged 17, the offence being directed at his mother. In September 2002 he was convicted of battery. He was nearly 18, the offence was committed against his mother. In February 2004 he was dealt with for four offences: false imprisonment battery criminal damage and intimidation. The appellant was then nearly 20. All four offences involved his mother - the false imprisonment of her being at the point of a knife. In March 2008, when he was 24, he unlawfully took his mother's motorcar, which was then used by him and others to commit a burglary at a church. In July 2008 he was dealt with for the aggravated taking of the same vehicle which, when he was pursued by the police, he drove into a wall, writing the vehicle off. In September 2008 he was dealt with for, among other matters, criminal damage to his sister's motorcar. Those previous matters were interspersed with other offences, involving the police and on one occasion at least paramedics - those other offences being not only of minor assault and public disorder but also of affray, again involving a knife, and racially aggravated assault upon a police officer.

Against that background on this day, 20th September 2008, an argument began in the course of the afternoon at the family home when the appellant sought payment for assisting his father with the gardening. The argument went on for several hours into the evening. He then began to argue with his father about who should walk the dogs. He persisted in this argument. To his father it appeared that the appellant simply wanted to provoke an argument. His father told him to leave him alone as he was seeking to diffuse this situation. The appellant then threw an orange at the wall, and said: "You fucking bastard"; then with apparent real venom he said: "You don't deserve to live." He picked up a plate and threw that against the wall causing damage to the plate and the wall, remarking: "It's all your fault I'm in this position." His father was shocked and afraid. The appellant then picked up a pint glass containing some drink and poured that over his father who by this stage had had enough and proceeded upstairs to take a shower. The father took his mobile phone with him, telling the appellant that if he did not leave him alone he would call the police. The appellant's response was: "You're not calling them, I've got too much to lose." His father said: "I've had enough I'm phoning" and he got up to go back downstairs taking his mobile telephone with him. The appellant seized him by the wrist and wrenched the phone from his grasp and then stood at top of the stairs effectively blocking his way. His father, desperate to get out and seeing the appellant's apparent agitation, went to reach for the telephone in his bedroom. He did reach it and managed to press the numbers but the appellant then punched the telephone out of his hand. Fortunately, the telephone provider realised that a silent 999 call had been made and contacted the police who then responded.

Meanwhile the appellant had pushed his father back onto the bed in the bedroom upstairs, adamant that he was not leaving, saying: "I'll stand here all night." Mrs Ashworth, observing what was going on was very apprehensive having previously experienced something similar at the point of a knife. The appellant pushed his father back onto the bed a second time but, fortunately, the police then arrived. The appellant becoming aware of that and released his father.

There is no clear evidence as to the duration of the period of detention but we accept what Miss Kitchen has said on behalf of the appellant that it was a comparatively short period of time.

The appellant was arrested. When interviewed he said that he and his father were arguing about an hour after tea time. He could not recall what they were arguing about but they were saying personal nasty things to each other and his father was saying he was no good. He did admit that as a result he threw an orange at a wall and then a plate. As to the false imprisonment, he was less than frank at that stage. He did not however maintain that stance. He pleaded guilty to these counts on his first appearance before the Crown Court on 29th September.

His previous convictions have already been summarised. They do include four previous convictions for specified offences: two of affray, one of false imprisonment and one of racially aggravated assault. The appellant in the past has been made the subject of community and other non-custodial sentences, some of which had been breached. In February 2004 he received a custodial sentence of 21 months' detention in a Young Offender Institution for the matters which included the false imprisonment of his mother. At the time of these present offences it appears that he was subject to community orders and to a suspended sentence order, which was subsequently activated on 22nd September. It appears that he was also on bail for the offence of criminal damage to his sister's motorcar.

Before the learned Judge there were two reports. A psychiatric report from Dr Halliwell indicated that this appellant had suffered in the past from episodes of psychosis as a consequence of the consumption of drugs. The doctor opined that the appellant's psychological and interpersonal difficulties arose within his personality rather than as a result of any mental illness and stated that there was no treatment available that would necessarily bring about a meaningful improvement in his condition. Dr Halliwell did add that a lengthy period of psychological therapy, arranged through the appellant's general practitioner, might be of assistance, but would obviously be dependent upon his motivation and commitment.

The pre-sentence report reviewed the appellant's history of offending and his troubled relationship with his parents. The writer opined that there was a high risk of this appellant re-offending and a high risk of his committing violent offences particularly against his parents, though he also posed a risk to others who might have to deal with him, such as police officers and hospital staff. His behaviour and attitudes indicated manipulative and predatory behaviour associated with the targeting of his mother. He showed a great deal of antipathy towards the legal system and its agencies, having previously failed to comply with licence conditions or community orders, or to take advantage of the assistance proffered by the Probation Service. The past abuse of drugs was referred to, as was his tendency to turn to alcohol as a means of addressing any emotional or psychological disturbance. The writer of the report was of the view that the appellant tended to minimise his offences and displayed little victim empathy. He demonstrated disregard for community sentences and the risk posed could not be managed under the terms of such a sentence.

In passing sentence the learned Judge observed that these offences involved him offending against his parents in the home that they shared. He noted that he had a lengthy record of misbehaviour towards his family and his mother in particular. Many of his previous convictions involved damage and real violence and it was clear that his parents found his behaviour was escalating in terms of its seriousness. This offence of false imprisonment, observed the learned Judge, was a serious offence and his dangerousness had to be assessed. He concluded that this appellant clearly did pose a significance risk of causing serious harm by future serious offending. That was based upon the pattern of his behaviour, the nature of his personality, and the fact that the risk could not be addressed within the community. A life sentence, he concluded, was not warranted. Nevertheless the behaviour was extremely worrying. On this particular occasion the incident had only ended when the police arrived after, by good fortune, they had been alerted by the telephone company. The learned Judge concluded that the proper sentence was imprisonment for public protection. Had a determinate sentence have been appropriate, it would have been one of 4 years' imprisonment, after giving credit for the pleas of guilty at the first opportunity. Therefore that was the sentence imposed: one of imprisonment for public protection with a minimum term of 2 years in respect of count 1 on this indictment.

It is noted that three days after passing sentence, on 4th December, the learned Judge had the case listed before him again, the appellant being represented by Counsel. In order to explain the process by which the Judge had arrived at this sentence, having made the assessment of dangerousness within section 229 of the Criminal Justice Act 2003 (as amended). He also referred to the apparent paucity of reported authority on sentencing in such a case, but genuinely assessed the notional determinate sentence at 4 years. The learned Judge further suggested that this court might be able to provide assistance.

As to the grounds of appeal, it is suggested but not maintained, as we understand it, that the learned Judge assumed dangerousness. It seems clear from his sentencing remarks that he did not do so. Also, although there is a ground of appeal to this effect, it is clear that the learned Judge was well aware that this appellant had no previous conviction for a Schedule 15A offence. Ultimately, the two questions for consideration appear to be these. Firstly, whether the learned Judge was right to conclude that this appellant posed a significant risk to members of the public of serious harm to be occasioned by the commission by him of further specified offences, having regard to the matters set out in the statute at section 229(2), and, secondly, whether a determinate sentence, whether notional or actual of 4 years' imprisonment was manifestly excessive. Under section 229(2) the learned Judge was entitled to take into account not only information about the nature and circumstances of the instant offences but also information about the nature and circumstances of the appellant's previous offences, and information disclosing a pattern of threatening and violent behaviour towards a parent. Apart from the information which those matters also disclosed about the appellant himself, there were very detailed reports upon him from a Probation Officer and from a Consultant Psychiatrist.

Although neither the instant offence of false imprisonment nor the appellant's previous offences had in fact resulted in serious harm within section 224(3) of the 2003 Act, the learned Judge was concerned with the assessment of future risk. The absence of serious harm thus far was not necessarily determinative of that. Further, the learned Judge was entitled to consider the question of risk to particular members of the public. He was entitled, in our judgment, on all the information before him, to conclude that this appellant did present a significant risk to members of the public of serious harm to be occasioned by the commission by him of further specified offences (see section 225(1)(b)). Having discounted, quite rightly, a sentence of life imprisonment, the next question for the learned Judge was whether the condition set out in section 225(3B) was satisfied. Subsection (3A) did not apply. Was the notional minimum term for this offence of false imprisonment at least 2 years? Reference has been made by Counsel in that context to R v Spence and Thomas (1983) 5 Cr App R(S) 413. Clearly this offence was aggravated by a previous like offence committed within the home and by other offences of violence used and threatened towards a parent but did not fall into the category referred to in Spence and Thomas at the upper end of the scale. This was indeed a very serious incident, particularly bearing in mind the victim's knowledge of this appellant's history and more particularly, no doubt, the fact that his wife had previously been the victim of a similar offence at knife point. It was indeed fortunate that the police arrived when they did. But as a matter of fact the detention was of short duration, the degree of actual violence was modest, and no weapon was either used or brandished. In the circumstances perhaps that was not necessary. Also the offence occurred spontaneously. Notwithstanding the aggravation of the previous convictions there was a guilty plea indicated at the very first opportunity, which therefore necessarily attracted the maximum credit. In those circumstances, this court is driven to the conclusion that a notional determinate sentence of 4 years' imprisonment would have been manifestly excessive, representing, as it would have done, a term of 6 years after a trial. We have every sympathy with the learned Judge who had a difficult sentencing task to perform. His assessment of dangerousness was justified but that left him with a very difficult decision to make, anxious as he no doubt was to do what was best in the interests of the appellant, his parents and the public. However the notional determinate sentence was excessive for this offence. In those circumstances, this court must quash the sentence of imprisonment for public protection. We substitute a determinate sentence. This offence being aggravated by the previous convictions especially against his parent and including the previous conviction for false imprisonment, we conclude, after giving full credit for his pleas of guilty, that the least sentence on count 1 was a term of 2 years' imprisonment, with no separate penalty on count 3. In the short term, this court expresses the hope that the terms of the appellant's licence upon release may assist towards any of the repairing of the relationship and dealing with questions relating to this appellant's place of residence and work. In view of the difficulties that have been revealed by this case, it may be that other steps will have to be considered.

LORD JUSTICE MOSES: We direct that a copy of this judgment should be sent to the Crown Prosecution Service so they can consider steps that might be necessary to protect the parents on his release.