R v Shuaib Muhammad

MR JUSTICE MARTIN SPENCER: By leave of the single judge the appellant appeals against the extended sentence of eight years, comprising a custodial term of five years and an extended period of licence of three years, imposed by Mr Recorder Whitehead sitting in the Crown Court at Newcastle upon Tyne on 24 December 2024 for an offence of stalking a person causing serious alarm or distress, contrary to section 4A(1) of the Protection from Harassment Act 1997.

The facts of this matter reveal a campaign of harassment by the appellant against the complainant over the period 2019 to November 2022. At the start of this period the appellant was on licence for earlier similar offending against a different complainant. The offending commenced when the appellant sent the complainant a note asking her to call a number as there was a parcel for her. The complainant was not expecting a parcel and so did not call the number. Several weeks later the complainant noticed that two of the four latches from her kitchen window had been removed, which she then had to have replaced. The complainant then reported to the police that one evening, whilst letting her dog out, a male who had been lurking in the complainant's garden had run off.

In July 2020 the complainant had woken at 5.30 am when her dog began to bark and the complainant saw the appellant standing outside her window. The appellant had been reaching in through the partially open window and was trying to undo window screw locks on the inside of the window. The appellant ran off. Three weeks later a neighbour reported seeing what she described as a "peeping Tom" looking through the complainant's window at 10 o'clock at night and on a further occasion when the complainant had let her dog out the appellant had been standing next to the complainant's bedroom window and subsequently ran off.

At that stage the complainant went to live elsewhere due to her concerns. She subsequently put a security camera in the kitchen window of her flat giving a view of the rear of her property. The kitchen window of the flat was subsequently painted white so that the camera would be ineffective. The complainant thereafter had to take a month off work due to stress and decided to sell her flat as she no longer felt safe there. It was sold in January 2021 and later that month she found a handwritten note from the appellant near her mother's address apologising for scratching the complainant's car and asking the complainant to call him. It had been assumed that on occasions the appellant had followed the complainant to her mother's address and that is how the appellant knew that the complainant would be there.

The complainant went on to buy another property about a mile from her first property and installed CCTV cameras and a Ring doorbell CCTV system. On 5 October 2021 the Ring doorbell camera was activated and the appellant was seen to be spraying paint onto the camera lens. CCTV at the back of the property had also been spray painted with black paint. The complainant then spent £500 getting a new CCTV system installed. On 22 November 2022 at 6.45 pm, the complainant received a notification on the new system and recorded footage showed the appellant crouched down by the complainant's spare bedroom. The appellant subsequently made off but his distinctive clothing had been captured on CCTV.

The complainant then received phone calls to her mobile phone from a withheld number. Police officers were called and attended her address. Later that evening at 11 o'clock the appellant was again seen on CCTV at the front of the complainant's gate wearing the same clothes and surgical gloves. The appellant was holding a mobile phone with the torch activated and put the torch up against the doorbell CCTV camera and then put a black bin liner over the security light. The complainant believed the appellant had been watching her address as the one time her partner had been present his car had not been parked outside.

CCTV footage was eventually circulated. The appellant was recognised by his Risk Management Officer. He was arrested on 11 November 2022 and from a shed in the appellant's back yard police officers found a box of blue vinyl gloves and a jacket, which was the jacket that the appellant had been seen wearing on the CCTV.

The appellant was interviewed but in interview he made no reply to questions asked. His mobile phone was analysed and call data was found which matched the calls to the complainant's mobile phone, along with an image of the complainant. In further interviews he gave no comment to questions asked. A note placed on the complainant's vehicle was examined and there was strong evidential support for the note having been written by the appellant.

The appellant appeared before the Magistrates' Court on 3 April 2024 and the Better Case Management form indicated that the matter would be admitted but that there were concerns regarding the appellant's fitness to plead so that a psychiatric report had been commissioned to establish his fitness to plead. The psychiatric report of Dr James Stoddart is dated 23 May 2024. It was Dr Stoddart's opinion that the appellant was fit to plead. He stated in his report:

"From my assessment of Mr Muhammad, my review of the case papers that I have been provided with and my analysis of his medical records I do not form the opinion that any psychiatric condition significantly affected his capacity to form the necessary intent for the offence he is charged with."

Dr Stoddart had interviewed the appellant on 3 May 2024 and it would appear that he must have relayed his opinion to the appellant's solicitors because when the appellant appeared before His Honour Judge Adams on 14 May 2024 his advocate informed the court that the appellant had been declared fit by the psychiatrist and that he could be arraigned, whereupon the appellant immediately pleaded guilty. The trial which had been fixed for 30 October was vacated and the matter was listed for sentence initially on 12 August 2024. It thus appears clear to us from the Better Case Management form and from what occurred on 14 May that the only reason the appellant had not pleaded guilty at the first opportunity was because his solicitors were waiting for the psychiatrist to confirm that he was fit to plead.

The matter in fact came before Mr Recorder Whitehead for sentence on 24 December 2024. At the outset of the hearing the learned Recorder asked to be reminded when the plea was. Prosecuting counsel indicated that the appellant had not been arraigned when first produced before the Crown Court on 1 May 2024 because the issue of fitness to plead was to be investigated and he then pleaded guilty some 13 days later on 14 May. The Recorder asked:

In sentencing the appellant, the Recorder placed the offending in the high culpability range and in the top category for harm, giving a starting point of five years' custody and a range of three-and-a-half years to eight years. He considered that the sentence following a trial would have been seven years (84 months). He considered that the custodial term after giving credit for plea should be five years (60 months), a credit of 24 months.

The Recorder indicated that he had rounded the sentence down and it is apparent that he considered the appropriate credit for plea should be 25 per cent. The Recorder also considered that there was a significant risk that the appellant would commit further offences of the same nature and passed an extended sentence imposing an additional three year licence on top of the five-year custodial term. He also imposed an indefinite restraining order and made the other usual ancillary orders.

The sole ground of appeal is that the learned Recorder fell into error in failing to afford the appellant full credit of one-third. Mr Hegarty, for whose written submissions we are grateful and upon whom we did not feel the need to call on this appeal, although he has appeared on the appellant's behalf today, referred the court to the guideline: Reduction in Sentence for Guilty Plea and in particular sections D1 and F. At D1 it is provided that where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made, subject to the exceptions in section F. The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. Section F deals with the exceptions and provides at F1:

In fact, the appellant had indicated a guilty plea in the Better Case Management form but subject to confirmation that he was fit to plead.

Mr Hegarty has also referred to the decision of this court in R v Nolan [2022] EWCA Crim 726 where in similar circumstances the court said this:

Having then referred to the sentencing guideline, the court continued:

Accordingly, we quash the custodial element of the sentence of five years and substitute a term of 56 months and to this extent the appeal is allowed.