R v Edwin Hawe

On 3 November 2023 the applicant (then aged 27) pleaded guilty before the Hatfield Magistrates' Court and was committed to the Crown Court for sentence pursuant to section 4 of the Sentencing Act 2020. In total he was committed in relation to seven offences, those being: making a threat to kill, three offences of sending a threatening message, an offence of threatening to damage or destroy property, and two offences of assault (one assault by beating and one common assault).

The sentencing took place on 11 September 2024 at the Crown Court at St Albans before Ms Recorder Nicola Williams. The applicant was then aged 28. The sentence passed in relation to all of those offences was one of an 18-month community order. That community order had five requirements appended to it, those being: an alcohol abstinence and a monitoring requirement for 100 days; a 6-month alcohol treatment requirement; a building better relationships programme; and rehabilitation activity requirement of up to 20 days; and 120 hours of unpaid work. There was also a restraining order imposed for a period of 5 years.

The court has before it an application for an extension of time of 9 days for leave to appeal against the sentence, which was referred to this court.

We say straightaway we grant leave for that extension of time - it is wholly explicable - and proceed to the substantive appeal.

The facts can be set out quite briefly. This applicant in August 2023 commenced a relationship with Jessica Taylor. It appears that on or around 28 October of that year she indicated she was thinking of ending that relationship. That news was not received well by the applicant. He became abusive over the following two days during which time the offences were committed. She believed at the material times he was suffering the influence of drink. He sent her a number of messages. He later that day called her home phone it was in fact answered by a friend. He was verbally abusive to that friend and made a threat to kill, which is the subject of the charge. It is of note that that friend did not in fact make a statement.

The following morning and thereafter further messages were sent by the applicant to her. Some were apologising, some were conciliatory, others were abusive. Standing back and looking at those messages, they were of a controlling nature. They became offensive, calling her grossly offensive sexualised names. In the early hours of 1 November, he then moved on to sending threatening voice notes to her, which are reflected in the two offences concerning the communication. He then went to her address at around 3.30 am on 1 November. He appeared agitated. He became angry. Jessica Taylor, concerned for the safety of her son and sister in law, suggested he should leave with her. She drove him from the premises. During the course of that journey, he became more verbally abusive. He threatened to burn two restaurants down owned by her family (the subject of the two charges). Then whilst driving, he pulled the car’s handbrake up. She was fearful they would have an accident. At one stage he took her phone it appeared that he realised that she had blocked him on that phone. She had by then stopped the car, at which point he grabbed her collar, threw the mobile phone at her and slammed her into the car door. In short, that course of conduct is reflected in the charges.

The court has considered the victim personal statement and the fear that that victim was placed in.

In terms of antecedents, it demands consideration of the chronology.

Before the sentencing court there was a pre-sentence report. It is unnecessary to go into detail; it sets out the history of the offending and also the view that these offences demonstrate an escalation of the seriousness of domestic abuse.

At that sentencing hearing, mitigation was advanced. The court was invited to sentence the applicant to immediate custody, bearing in mind he had served the equivalent of 14 months in custody awaiting his sentence.

We have carefully reflected upon when the period of custody commenced which related solely these matters. It was 2 February 2024, this being at the end of his 20 week term of imprisonment imposed on 1 December 2023. It appears he did not have a suitable bail address and bail was revoked.

In short, the applicant submits that the total sentence is manifestly excessive or wrong in principle because the judge failed to take into account the applicant's time on remand.

Reliance is placed on a number of authorities, the most recent, the case of Lynch [2007] EWCA Crim 2624, which clearly establishes the principle that it is wrong to impose a sentence which exposed the appellant to the risk of further punishment when the punishment they had already experienced exceeded the punishment that the judge would have imposed. The applicant contends that the period the applicant served (equivalent to 14 months) equates to or beyond the just and proportionate sentence for the offending.

We accept as a matter of principle that time spent on remand for an offence a person is to be sentenced for does not automatically count towards a community order. We also accept that a community order has components of punishment and rehabilitation, both of which place restrictions on offender's time, movement, and hence their liberty. We accept that where a defendant has already served a period of custody which fulfils punishment by in effect already serving the proposed identified sentence, it would be wrong to impose further punitive, or indeed in some instances rehabilitative conditions in a community order. Each position exposing the offender to the risk of punishment for culpable breaches of any conditions. Standing back, we must consider whether a notional appropriate punishment for these offences that the judge could have imposed could have exceeded the effective period of custody the applicant had already served. We have considered the seriousness of the offending - these offences designed to intimidate and control the victim. The offences being placed in the context of previous convictions establishing an escalating pattern of domestic abuse fuelled by drink and drugs. Also, we note the previous breaches of court orders. We of course stand back, applying the sentencing guidelines, both in sentencing multiple offences but also reflecting the sentence imposed in 2024, when the applicant could have been sentenced for all these matters. In our judgment a significant period of custody would have been correct in principle, but not one that would exceed the effective period of custody already served by this applicant. We accept, therefore, that the applicant would be exposed to the possibility of further punishment if there was a culpable breach of the community order imposed.

We accept that the correct provisional position would be to extinguish the community order. We acknowledge that this court would be precluded from substituting a term of imprisonment. However, the position here is more nuanced to this degree. At the sentencing hearing the sentencing judge had before her a subsisting community order which was imposed on 2 October 2023. She reflected whether she should revoke that order and resentence. It is clear her intention was, and she did revoke that order and resentenced. In resentencing she took this route: she appended the 120 hours from the revoked order, to the community order which she imposed for the current offences that were before her. It is perhaps quite understandable that this pragmatic route was taken. It is conceded on behalf of this applicant that if the court was to simply revoke the whole of the community order, the applicant would effectively have the benefit of having the community order of 2 October quashed. When he had served no punishment for the prior offending refelected by the October community order.

It is clear in this qualified way the application before us succeeds on this basis: the sentence is revoked and in its place a community order of 15 months, with up to 15 days of rehabilitation activity requirements and 120 hours of unpaid work. For clarity, that reflects the sentence that was imposed on 2 October. To that extent we allow the application and appeal and amend the sentence accordingly.