R v Archie Musgrove

On 3 September 2024, in the Crown Court at Reading before His Honour Judge Millard, the appellant (then aged 20) pleaded guilty to sixteen offences of blackmail.

On 25 November 2024, also in the Crown Court at Reading but before His Honour Judge Nawaz, the appellant (then aged 21) was sentenced to sixteen concurrent sentences of 3 years and 4 months' custody in a young offenders' institute. At sentence the court was also invited and did take into consideration 38 like offences.

He now appeals against his sentence with leave of the single judge.

The facts are fully set out in the Court of Appeal summary, but in short, the sixteen counts cover a course of repeated conduct from August 2023 to July 2024, reflecting sixteen victims the appellant blackmailed.

The method he deployed to blackmail followed a similar pattern. By way of example, drawing from the facts relating to count 1, the appellant contacted an acquaintance and convinced him that he (the appellant) could make money gambling. The victim sent £30. The appellant then requested more money. The victim sent a further amount and then refused to send more. At this point the appellant became angry, threatened to come to his house and “smash it up”. He also threatened to freeze his victim's bank account. The messages succeeded in frightening the victim, and so he sent further money, totaling £285, before he blocked the appellant on social media on 30 August.

The victims in relation to the remaining counts appear to have been unknown to the appellant. He messaged them on various forms of social media platforms. He would invite some to become involved in gambling. They would send money, then followed further demands for money, with attendant threats. To others, the appellant would message them, fictitiously asserting that they owed money for illegal drugs they had bought. He then demanded money. When they refused, he would deploy various threats; for example, that he would tell others of their fictitious drug debts, such as their employers or family members. On other occasions he would send victims screenshots of their address and state that people would go to the address and damage it. There were also direct threats of violence; for example, sending a message, “I'm going to cut your legs off mate and feed them to my fish”; another example, “You're brave for not paying, considering you have a son in the house”.

The appellant was arrested on 5 November 2023, having committed six offences reflected in the counts on the indictment. He was bailed, and then arrested again on 21 April 2024, having committed a further five offences. He was bailed, and finally he was arrested on 5 August, having committed a further five offences, all reflected in the sixteen counts.

There were 38 offences that the sentencing court was invited to take into consideration, (TIC’s) each being offences of blackmail carried out in materially the same way as the offending on the indictment. The TIC’s covered a period from December 2023 to July 2024. It is also of note, four of these offences were committed before his first arrest, a further fourteen after that arrest and before his second arrest, and a further twenty after his second arrest and before being arrested on the final occasion. The final period of offending reflecting over 50 percent of his offending after he had been arrested on two occasions.

The financial losses reflected in the indictment amounted to £6,235; those in the matters taken into consideration a further £2,960; therefore, the total losses to all 54 victims were some £9,195.

There were two victim personal statements available before the court.

The appellant was of a hitherto good character.

The sentencing court had before it a pre-sentence report, a psychological assessment report authored by Dr Gaskell, a number of character references, a letter from the appellant, and also a letter from Gamline, a peer-to-peer group who addressed gambling addiction. The court notes that the appellant voluntarily attended this group in May 2024, this being prior to his final arrest and charge.

There were no offence specific guidelines for the offence of blackmail.

In terms of the defendant's credit for his pleas of guilty, the Better Case Management form evidence that the appellant accepted his guilt in the magistrates’ court, albeit he only faced fourteen charges; ultimately the indictment settled had sixteen counts. There is no issue that he was entitled to a full one third reduction for his pleas of guilty.

The judge in sentencing observed:

“These offences were committed by you over a significant period of time. In my judgment, there is plenty of evidence to show that you had planned these offences, you had given them some thought, and you’d come up with a method of intimidating people into, effectively, handing over their money.”

He later went on to say:

“…I accept from the psychological evidence that I’ve seen that you, from Gamble - or Gam-Anon, and your attendances there, progress that you made, that you were in the throes of a gambling disorder. But, in my judgment, that is very different from somebody who has, although it’s been likened to somebody who has a disorder or an addiction to drugs, it’s something that you undertake voluntarily.

…

In my judgment, it cannot be said that you lack maturity, because, as I’ve already indicated, you had given a good deal of thought into the commission of these offences …”

“It seems to me that, taking into account those additional offences, had you been convicted after a trial then the least sentence that would have been appropriate in my judgment to mark the public’s disapproval of your conduct would be seven years’ imprisonment.

I reduce that sentence to reflect the mitigation that’s been advanced, namely, insofar as gambling addiction is concerned, and your personal mitigation, namely, your age, and the matters that are set out in the testimonials which I have read. That reduces the sentence to one of five years (60 months).”

The judge then reduced the sentence by one-third to reflect his guilty pleas, arriving at the 40-month concurrent sentences.

On the appellant's behalf Mr Corre, in his helpful and succinct submissions both in writing and developed before this court this morning, places before the court a single ground of appeal. He submits that the sentencing judge fell into error - in summary, that the judge misdirected himself that the gambling disorder was not an addiction - and as a consequence he failed to have regard to the guidelines on the Sentencing of offenders with mental disorders, developmental disorders, or neurological impairments; and therefore failed to consider whether there should have been a reduction in the appellant's culpability or the possibility of an increase in the impact of imprisonment. In the result, it is contended that the sentence was manifestly excessive or wrong in principle.

When considering whether the judge could have properly come to the conclusion that it the appellants gambling was not an addiction, we consider all the material, including the assessment of the appellant in the psychological report of Dr Gaskell:

“In my opinion Mr Musgrove had a severe gambling disorder at the time of his offences. A gambling disorder significantly alters thinking, attention, decision making and behaviour. In my opinion, and from the available evidence, it is the main cause of his index offences. Without the gambling disorder I do not believe that he would have committed the offences.”

The psychologist explained that:

“Gambling harm lies on a continuum of severity, with Gambling Disorder at the severe end. The term Gambling Disorder is used in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders and sits alongside the traditional addictions ...”

We infer that the reference to “traditional addictions” relates to, for example alcohol and/or drug addiction, which the judge sought to distinguish from gambling. He did so in his sentencing remarks, stating,

“ in my judgment, that [gambling disorder] is very different from somebody who has, although it’s been likened to somebody who has a disorder or an addiction to drugs, it’s something that you undertake voluntarily”

He went on to say that it should have been patently obvious to the appellant that he needed to change his ways. In so stating, it appears the judge in part overlooked that the appellant had voluntarily attended Gamline and embarked on peer-to-peer sessions in May of 2024

Another component of the appellant's neurodiversity was the impact of attention deficit hyperactivity disorder. This is considered within the psychological report:

“Importantly, he also told me that he had received a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). There is an overrepresentation of ADHD in those who are treated for gambling disorder, and research has estimated as many as 25% of those with gambling problems meet the criteria for ADHD. Some of the pathways into gambling addiction are linked with ADHD symptoms such as impulsivity, impatience, distractibility, high reward sensitivity (needing stronger rewards/more excitement to feel stimulated), proneness to boredom, short attention span, and inattentiveness.”

In conclusion, the psychiatrist opined:

“A gambling disorder is a chronic relapsing psychiatric illness, with significant consequences for the individual, and others, as this case clearly shows. It alters a person’s personality, thinking and behaviour to a significant extent.

His offences, to the best of my knowledge, have all been carried out in the context of this psychiatric illness, which has significantly impaired his rationality and control capacity.”

The sentencing judge was clearly of the view that the appellant had a gambling disorder, however his assessment of the material did not appear to lead the judge to engage with the sentencing guidelines in relation to those with mental disorders. We conclude that this body of material required the judge to consider those guidelines. This would then require the judge to reflect upon his assessment of culpability. Such an assessment requires consideration as to whether culpability is reduced. Culpability will only be reduced if there is sufficient connection between the offender's impairment and/or disorder and the offending behaviour.

We acknowledge that within section 2, at paragraph 13 of that guideline, guidance is given in assessing culpability,

“The sentencer, who will be in possession of all relevant information, is in the best position to make the assessment of culpability. Where relevant expert evidence is put forward, it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside.”

We can find no compelling reasons to set the expert's opinion aside.

We note also within the guidelines at paragraph 14 that:

“The sentencer must state clearly their assessment of whether the offender’s culpability was reduced and, if it was, the reasons for and extent of that reduction. The sentencer must also state, where appropriate, their reasons for not following an expert opinion.”

We do accept the judge reduced the sentence to reflect the appellant's gambling.

The sentencing judge had before him a young adult defendant who had carried out a concerted pattern of offending over a significant period. This offending started in August 2023. It continued despite being arrested in November 2023 and April 2024. The offending did not stop until he was finally arrested in August 2024. The view of the judge was that the appellant carried on for personal gain, and he had a choice to gamble or not.

. The question remains for the determination of this court as to whether the resulting overall sentence was wrong in principle or manifestly excessive.

Stepping back, we are driven to the conclusion that the judge failed to take proper account of the gambling disorder, a psychiatric illness, failed to engage with the sentencing guidelines on Sentencing offenders with mental disorders, and failed to consider whether there was a reduction of the appellant's culpability or the possibility of an increase in the impact of custody. We conclude that the judge erred in principle. Insufficient reduction was given to reflect the appellant’s neurodiversity and addiction.

. In the result, we reduce the notional sentence that would have been imposed after a trial by an additional 6 months. This being in addition to the reduction for mitigating factors identified by the sentencing judge.

For clarity, this court’s identified reduction of 6m is in addition to the original applied reduction of 24 months. This is from the identified notional 7-year (84 month) sentence after a trial. This resulting in a term of 54m, to this figure we apply the ⅓ reduction for the appellants guilty pleas. We arrive at sentences of 36m or 3 years.

Accordingly, we allow the appeal, quash the original sentences, and impose concurrent sentences on each count of 3 years' detention in a young offenders' institute.

We note that the appellant was aged 18 at the date of the conviction. In this case the sentence was recorded as a sentence of imprisonment. The sentence is and should be recorded as a detention in young offenders' institute.

For the reasons given above, the appeal is allowed.