R v Emma Sushila Inkeri Patel

On 13 December 2019, the Applicant and her mother pleaded guilty at Isleworth Crown Court on the basis of an agreed basis of plea to stalking involving serious harm or distress contrary to section 4A of the Protection from Harassment Act 1997. The pre-trial preparation hearing had taken place on 10 October 2019, at which they had each pleaded not guilty. The trial had been fixed for 17 January 2020. The Crown offered no evidence in relation to certain other counts. On 17 January 2020, His Honour Judge Connell ("the Judge") at the same Crown Court sentenced the Applicant to 11 months' imprisonment, suspended for 24 months and conditional on fulfilling a 20-day rehabilitation activity requirement and undergoing a community rehabilitation programme. The Judge had and considered various documents and materials including a pre-sentence report dated 10 January 2020. The Applicant's mother on the same occasion was sentenced to nine months' imprisonment, also suspended for 24 months, conditional on a 20-day rehabilitation activity requirement.

The facts upon which the Judge sentenced the Applicant were in essence as follows. The Applicant had begun a relationship in April 2018 with the victim, Dominic Fernandes. By October 2018 it had plainly turned sour. Mr Fernandes tried to finish the relationship but it continued, and there continued until the beginning of May 2019 a consensual relationship of sorts. Mr Fernandes described how after October 2018 the Applicant was calling him 50 to 60 times a day, calling his family and friends at work, and persistently contacting him through WhatsApp and text. As was accepted by the Applicant: by early May 2019 contact from her was unwanted and contact after that date caused Mr Fernandes alarm and distress such as to cause substantial adverse effects on his day-to-day activities constituting the section 4A offence. Mr Fernandes had gone to South Africa on 1 March 2019 to check into a Rehabilitation Centre there (he had begun drinking heavily and his work had begun to suffer). Early May 2019 was halfway through his period of ‘rehab’ and was the point at which his mobile phone was returned to him. At that point he became aware that the Applicant and her mother had been constantly calling him and the Centre. He thereafter began receiving calls from many numbers that he did not recognise, numbers which the Applicant was using. Meanwhile, her mother contacted the Rehabilitation Centre directly in a harassing manner and reported it to its governing body, alleging that it was unfit. Mr Fernandes's family instructed lawyers, at a cost of some £6,000 in legal fees, to write a ‘cease and desist letter. Mr Fernandes returned to the United Kingdom on 4 July 2019. The Applicant's mother's conduct stopped in the face of receipt of the lawyers’ letter. The Applicant's conduct did not. The high volume of unwanted calls and texts from the Applicant continued in a similar manner and frequency as before. As before, the Applicant was using withheld numbers. When arrested on 26 July 2019, the Applicant was found to have four different mobile phones and 20 SIM cards. She accepted that they were hers and that she was using them to contact Mr Fernandes.

Mr Fernandes's father described the "relentless" volume of accusatory phone calls and WhatsApp messages which he and his wife received from the Applicant and her mother. He described contact from ten different telephone numbers, each of which he had to block. His wife's evidence described contact being made by phone numbers, which were blocked, and then by subsequent emails. Mr Fernandes's two sisters described being followed on social media accounts and receiving accusatory messages as well as constant calls and messages. This evidence described messages as having included those which stated that the Applicant was in a coma, that she had attempted suicide, and that the Fernandes family was to blame. A series of unwanted messages were also received by a woman called Lucy, who the Applicant was aware had been on a date with Mr Fernandes, that having been discovered from researches online. On 14 August 2019, the Applicant had gone into a dating website, moreover, having had for that purpose created a profile for herself, and found a dating profile of Mr Fernandes. She had then screenshot it and sent it to him, with messages designed to harass him. Mr Fernandes described the impact of the conduct of the Applicant and her mother as having left him very anxious and scared, worried about his and his family's movements, always wanting to be accompanied by other people when he is out and about in case he should encounter them. His dad described the process as emotionally draining and affecting the wider family. His mum described herself and the family as petrified, unable to sleep and stressed all the time. She expressed concern as to how the Applicant seemed to be able to find out so much information about them, contact details, and future family events.

The Judge's sentence involved four essential stages. The first was identifying the applicable category from the sentencing guideline on intimidatory offences as category 2 for harm and B for culpability. The second stage was to identify the appropriate sentence before reduction for guilty plea as being 14 months. The third stage was to identify and apply an appropriate reduction of 20 per cent to reflect the guilty plea and its timing, producing the sentence of 11 months. The fourth stage was to address by reference to the sentencing guideline on imposition of community and custodial sentences the question of suspension, at which stage the Judge decided to suspend, and the relevant conditions. No challenge is raised in relation to the third or fourth stages.

Following the refusal of leave to appeal by the single judge, Mr Butt QC advances two grounds of appeal by reference to which he says the sentence was manifestly excessive and failed correctly to apply the intimidatory offences Sentencing Guideline. The first ground relates to the Judge's first stage. Mr Butt QC accepts that the Judge was entitled to place this case within harm category 2. We will need to return below, in the context of the second stage, to a question relating to what the Judge said about the harm and the bracket. Mr Butt QC, for this ground of appeal, focuses on culpability. The Guideline has four culpability categories: Category A down to category D. Category A is “very high culpability” and applies where there are “culpability B factors”, one or more of which is “extreme” in “nature”, or “a combination” of which indicates “extreme culpability” to “elevate to category A”. Category B is “high culpability” and lists four features. Two of those are potentially relevant to the present case: the first, “high degree of planning and/or sophisticated offence”; the second, “persistent action over a prolonged period”. Category C is “medium culpability” and lists three features, two of which are lesser versions of the two just described from category B, namely “some planning”, and “scope and duration of offence that falls between categories B and D”. That leaves category D “lesser culpability” which contains four factors of which the relevant two are “little or no planning”, and “offence was limited in scope and duration”. Mr Butt QC submits that it is important to read the relevant factors in each category alongside the way in which they are described in the others. We agree.

Mr Butt QC says firstly that this was not, properly characterised, a case of persistent action “over a prolonged period”. He submits that “prolonged period” is a necessary component of “persistent action over a prolonged period” and cannot be met by a period of three months. Such a period, he says, is beyond that which was in contemplation of the drafters of the Guideline. He also submits that it was not open to the Judge to characterise this as either a “sophisticated offence” or containing a “high degree of planning”. The cumulative effect of those submissions is that he says it was excessive and incorrect to place this case within culpability category B. Mr Butt submits that this was, properly characterised, a case of “some planning”, and not to be regarded as “sophisticated”. He emphasises that the relevant individuals had open social media profiles. He says there was extremely limited research. It was no secret that Mr Fernandes was at the Rehabilitation Centre. He also submits that it is inevitable, in a case where there is a course of conduct (necessitated by the crime itself) involving phone calls and messages – given that those can be ‘blocked’ – that the offence will in reality be committed by getting hold of other means of making contact, namely readily available additional SIM cards.

We agree with the single judge. In our judgment, it is not realistically arguable that the Judge's assessment of category 2B was in error. The Judge said this:

The second (and “secondary”, as he put it) ground that Mr Butt QC advances, if he is wrong on his first ground, is that the sentence is manifestly excessive even if properly placed within category 2B. Mr Butt QC submits that it was not open to the Judge to arrive at a custodial sentence of 14 months before the reduction for a guilty plea. This is therefore a challenge to the Judge's second stage. Mr Butt QC submits that although the Judge referred to the relevant mitigation, something to which we will shortly return, that mitigation did not then find itself reflected in the sentence that the Judge passed. He submits that there was no reduction given for the strong personal mitigation in the light of starting point, as he put it, identified by the Judge. Mr Butt QC submits that the sentence should have been below the starting point in the guidelines (36 weeks), not substantially above it. He emphasises that there were not said to be any discrete aggravating factors in this case. In writing, he submits that the Judge also double-counted factors already determinative in selecting the category.

As with the first ground, we agree with the single judge. In our judgment, it is not arguable with a realistic prospect of success that the Judge erred in identifying 14 months prior to reduction for guilty plea. We deliberately use this phrase, rather than the term "starting point", for a reason to which we will return.

We do not accept the submission, even arguably, that having faithfully recorded the relevant mitigating factors, the Judge then failed to have regard to them and failed to reflect them within his assessment of the appropriate sentence. Mr Butt QC, in writing and orally, has emphasised a number of relevant mitigating features of this case but, as his skeleton argument rightly recognises, the Judge specifically and explicitly referred to each of them in the sentencing remarks. The way the strong personal mitigation is elegantly encapsulated by Mr Butt QC in writing is as follows:

The level of sentence prior to reduction for guilty plea, 14 months, was in our judgment – and beyond argument – well within the range within the sentencing Guideline. The range goes to an upper end of 18 months. It is at this stage that we need to return, in the context of the Judge’s second stage, to a question relating to what the Judge said about the harm and the bracket. The Judge specifically described his conclusion so far as harm was concerned as not only putting this case within category 2, but “towards the higher end of category 2”. That was a clear and explicit reason why the Judge considered it appropriate to place this case towards the higher end of the bracket so far as harm is concerned. Mr Butt QC submits that one needs to approach harm with care so far as third parties are concerned. He submits that it is important to guard against inflation of sentence when third parties enter the picture, emphasising the sentencing Guideline for category 2 harm, emphasising harm “to the victim”. In our judgment, beyond argument, it was open to the Judge to have in mind not only the harm to the victim but the harm to the relevant third parties. We do not accept that category 2 harm serves in principle to exclude that question. However, even if it were the case that category 2 harm were to be approached solely by reference to the position of Mr Fernandes, that harm to the victim of itself justified category 2, as Mr Butt QC accepts. On that premise, the Judge was then perfectly entitled to have regard to the question of harm and third parties when deciding where on the relevant range to place this case. That is clearly what in substance the Judge did. Moreover, we repeat that there were two applicable relevant features so far as concerned culpability category B. The Judge needed to, and did, evaluate those and all the facts of the case, considering then the question of aggravating factors, factors reducing seriousness, and the reflection of personal mitigation.

We said we would return to the question of "starting point". Mr Butt QC submits that because the Judge took a “starting point” (as Mr Butt QC describes it) of 14 months, and gave the reduction for the guilty plea from that 14 months, the Judge ignored the question of strong personal mitigation and did not factor it into first arriving at the 14 months. We cannot accept, even arguably, that characterisation of what the Judge did. In the sentencing remarks, the Judge referred in terms to the strong personal mitigation, and then went on explicitly to say this when addressing the Applicant:

For all those reasons, and notwithstanding the elegant way in which the submissions were put by Mr Butt QC, we cannot accept that either ground of appeal is arguable. The application for permission is therefore refused.

Email: Rcj@epiqglobal.co.uk