R v Donna Foster

This is the hearing of an application for leave to appeal against sentence which was referred by the Registrar to the Full Court.

The applicant, Donna Foster, had pleaded guilty on 3 December 2024 in the Crown Court at Manchester (Minshull Street) to a count of sending an electronic communication with intent to cause distress, contrary to section 1(1) of the Malicious Communications Act 1988. On 13 June 2025, Ms Foster (a 45-year-old woman) was sentenced to an immediate term of custody of 13 months.

This application for leave to appeal was made on the basis that Ms Foster was sentenced for an offence that she did not commit, that insufficient regard was had to her personal mitigation and the sentence was therefore manifestly excessive. The Registrar referred the application because the judge had not addressed in terms whether the sentence should be suspended. Ms Shenton, who has appeared on behalf of Ms Foster and to whom we are very grateful for her submissions, has adopted that as her ground of appeal. There is a further ground of appeal which really is a subdivision of the first ground of appeal which was a complaint in relation to the amount of credit for guilty plea that was given to Ms Foster.

The relevant facts are that in 2021 Mr Jacque had made an arrangement with Ms Foster for her to care for a litter of XL Bully puppies at her home and she would be paid when they were sold. There were reported concerns about the costs that were being asked for and the care the dogs were receiving, and the court was never in a position to address those issues. In early January 2022 Mr Jacque indicated that he wanted to retrieve the puppies and on 11 January 2022, he attended at Ms Foster's home address with his son and another female. He remained outside and the puppies were passed to him in the car. Ms Foster and another female confronted Mr Jacque's son inside the address and there was shouting and reference to getting a hammer and breaking kneecaps. The son was able to take the hammer away from Ms Foster. The group departed with the dogs. None of these were issues for which Ms Foster was to be sentenced but the basis on which matters developed. There was an argument that continued in relation to returning the son's mobile phone. All these issues were reported to the police but no action was taken at that point.

Following that confrontation a series of messages were sent by the applicant Ms Foster to Mr Jacque and they included comments such as: "You’ve made the biggest mistake of your life. You robbed me, don’t think I’ll forget it. This isn’t over and you’ll see that soon. You’d better watch yourself not everyone is as calm as me." Another message which will become relevant shortly was to this effect: "Good luck. Best wishes. All my condolences to your family." The judge said in terms of the seriousness of this offending that these were the most serious forms of malicious communication that he had seen and we consider that the judge was entitled to treat these as very serious malicious communications.

In the interim, Ms Foster had messaged her family to complain about what had been done and her desire for something to be done in response. But, and this addresses the first ground of appeal raised by Ms Shenton, the prosecution were not able to prove that Ms Foster was party to what happened next. What happened next was that on the following afternoon, on 12 January 2022, Mr Jacque was at his home address when a man dressed in black and wearing a balaclava and carrying a long-barrelled shotgun entered the communal stairway to the property and kicked the front door off its hinges. The male pointed the firearm at Mr Jacque, who reached for a knife and ran towards the door. He was able to use a dislodged door as a shield and the man discharged the shotgun once from the stairwell. The door was thrown at the man who fled down the stairs and who fired again. Mr Jacque pursued the attacker into the street. The shotgun was fired for a third time and the male ran towards the group of three or four other males at the street corner. Ms Foster's son (Callum Cox) was one of the males in that group.

Immediately afterwards Ms Foster was observed driving around the vicinity. Mr Jacque and his son attended at Ms Foster’s address shortly afterwards and saw one of the dogs which was eventually collected. Following this, on 13 January Callum Cox sent a message saying that: "Think you can come on badass to my mum…You think you can stay in Leigh alive. Get your whole tribe killed off." That was obviously from the son and, again, it is important to emphasise that Ms Foster was not proved to be any party to that aspect of it.

The matter was listed for trial on other counts and we have seen the indictment. On day 2 of the trial, it was resolved, so far as Ms Foster was concerned, when she offered a plea to the offence of malicious communication. The judge when sentencing recorded that Ms Foster was aged 45. She had no previous convictions and one caution, in 2014, for battery and criminal damage.

There was a pre-sentence report which, so far as is material, recommended some community punishment, rehabilitation activity requirement days and some 300 hours of unpaid work. It is also right to record that that showed that Ms Foster had been the victim of domestic violence at the hand of her former partner. Ms Foster lived, so far as is material, with her daughter, aged about 18 years, who had just given birth to a child and who was receiving considerable assistance from Ms Foster. There were victim personal statements setting out the effect of the offending on the victim.

So far as the judge was concerned, the judge took the approach of considering this a very serious offence. The judge started at 21 months (there is no offence specific guideline), reduced to 18 months to take account of character and a further reduction to 15 months to take account of other matters of mitigation including the fact that this would be Ms Foster's first prison sentence.

The judge said that, having considered all the relevant circumstances, there was a responsibility for what had happened and then applied a reduction of 10 per cent because the plea had been entered on the second day of trial albeit, as Ms Shenton fairly points out, to an offence which was not on the indictment and the sentence was then imposed. This gave a sentence of 13 months.

The judge did not expressly address issue the Overarching Guideline on Imposition on Community and Custodial Sentences. We record that this is the Overarching Guideline effected from 1 February 2017 which applies. We note that there is a new guideline on the imposition of community and custodial sentences which will be effective from 1 September 2025 but it is common ground that has nothing to do with this appeal.

We then turn to the grounds which have been advanced before us. The first complaint is effectively that the judge had sentenced Ms Foster for an offence for which she had not been convicted of either on her plea of guilty or by a jury, namely the discharge of the shotgun.

In our judgment, that is not a fair characterisation of the sentencing remarks. The judge is entitled, as was common ground, to take account of all the relevant circumstances. This was a message sent effectively indicating that the recipient was going to die. Although Ms Foster herself was not party to her son's own actions and his part in the attempts to fire a shotgun at the complainant, it is apparent that the judge was entitled to consider the seriousness of the message sent with intent to cause distress. We can see no error in that respect. As already indicated we consider the judge was right to consider this to be a very serious malicious communication.

So far as the reduction of 10 per cent is concerned, in our judgment, that was an approach the judge was entitled to take. This was a plea offered on the second day of a trial in order to resolve matters. As Ms Shenton had fairly accepted, it could have been offered before but pointed out that it was not on the indictment. Other judges might have taken a different approach but in our judgment the judge's approach was consistent and applied the relevant overarching guideline on discounts for guilty pleas.

The third point is there was no proper account of mitigation. It is apparent that Ms Foster has had difficulties and has been the victim of domestic violence, it seems not only from her former partner but also from others within the family (it is not necessary to identify who else), and has been providing very considerable care to her daughter who has just given birth to her first child. The judge did make discounts for mitigation and although other judges might have made a larger discount, we are unable to say that there was any error in principle or that led to the sentence being manifestly excessive.

That brings us to the last point, which was the decision not to suspend the sentence. The judge had not expressly referred to the guideline. As is well known the factors suggesting that it would not be appropriate to suspend a custodial sentence are that the offender presents a risk/danger to the public, appropriate punishment can only be achieved by immediate custody and history of poor compliance with court orders. The last plainly does not apply. It is apparent that the judge considered that appropriate punishment could only be achieved by immediate custody when one has regard to what he said describing the offence.

So far as the offender presenting a risk of danger to the public, there was no evidence that Ms Foster did present such a risk notwithstanding all that had gone on and the messages that she had sent. We note that was not specifically addressed in the pre-sentence report.

So far as factors indicating that it might be appropriate to suspend a custodial sentence, the first is a realistic prospect of rehabilitation and we are satisfied that that applied. There was personal mitigation so far as the second factor is concerned but we would be unable to describe it as "strong" personal mitigation. The third factor was immediate custody would result in significant harmful impact upon others. The judge, albeit not addressing the guideline in terms, recognised that this would have a hard effect on Ms Foster's daughter but was not persuaded to suspend the sentence.

In the circumstances where the judge has not expressly addressed the question of suspension, it falls to us to take account of the matters albeit adopting what the judge has said so far as that is not wrong to do so. In our judgment, the judge was entitled to consider that this was such a case where appropriate punishment could only be achieved by immediate custody and therefore entitled not to suspend this sentence. This was because of the seriousness of the messages sent with intention to cause distress.

In all those circumstances and notwithstanding the skill with which Ms Shenton has made the application before us, we will refuse leave to appeal against sentence and therefore the sentence will remain as is. We should record that Ms Foster was originally told that she would serve until 1 November in custody before being released on home detention curfew but that date has now been brought forward to some 20 days' time, which is the beginning of September.