R v Paul Anthony Amoah

On 30 January 2024 in the Crown Court at Truro, the appellant was convicted of offences of attempted murder, wounding with intent and aggravated burglary. He was sentenced at the same court on 4 March 2024 to a term of imprisonment of 27 years for the attempted murder, with concurrent sentences of 10 years' imprisonment for wounding with intent and 8 years' imprisonment for aggravated burglary. Ancillary orders were made including a restraining order in respect of the victims of the offences.

There were two co-defendants, Lee Mitchell and Gavin Smale, who were each acquitted of attempted murder but convicted of a number of other offences. They were sentenced to terms of imprisonment totalling 9 years and 7 years respectively, and were made subject to restraining orders in the same terms as the appellant.

The appellant now appeals with limited leave of the Single Judge. The sole ground of appeal relating to imposition of the restraining orders.

On 6 July 2023, Jaroslavas Gavorskis was at his home on Drump Road, Redruth in Cornwall. His friends, Terry Madden and Luke Hocking, were also present at the property. Mr Gavorskis was a heroin addict who used drugs at home and sold drugs to a limited number of other people. On the relevant day he heard knocking at the front door. Terry Madden got up to see who was at the door but could not see anyone through the spy hole. There was then a knocking at the back door. Terry Madden went to look and hurried back into the front room saying there was a man (the appellant) pointing a gun through a glass pane. The appellant was shouting at Terry Madden to open the door. The back door was then smashed in and two men (the appellant and the co-defendant, Lee Mitchell) both wearing balaclavas and armed with a gun and hammer entered the property. One of the men cut himself on the glass of the door.

Mr Gavorskis grabbed an air rifle for which there was no ammunition but the appellant said: "You want to see a real gun", whereupon Mr Gavorskis turned and ran. He was shot in the back by the appellant. Mr Gavorskis recalled being punched to the face while a man repeatedly asked him where the safe and the drugs were. He was aware that Terry Madden was being attacked with a hammer by one of the men (in fact Mr Mitchell). The men took a small safe that Mr Gavorskis owned which contained amongst other items a passport.

After the shooting Mr Gavorskis saw two men outside the house still wearing balaclavas and a third man (the co-defendant Gavin Smale) without a face covering. Mr Gavorskis knew Smale as a man to whom he had previously sold heroin and cocaine. Smale apologised to Mr Gavorskis and told him it was nothing to do with him.

A handgun wrapped in a cloth was later recovered from the home address of a friend of the appellant, who gave evidence that he had attended her property on the day of the shooting. Forensic evidence confirmed it was the gun fired at Drump Road and that the cloth the gun was wrapped in contained the appellant's blood and that the appellant's DNA was on the grip of the gun.

A bag containing a credit card bearing the appellant's name was recovered nearby and a search of the appellant's home yielded part of Mr Gavorskis’s passport that had been in his safe and a metal bin in the back garden with evidence that items had been burnt in it.

The background to the offending was that Smale and his partner were drug users who had accrued a debt to the appellant. The appellant was demanding repayment and so Smale suggested targeting the property at Drump Road as suitable for a burglary instead.

Two of the victims, Jaroslavas Gavorskis and Terry Madden, made victim personal statements. Jaroslavas Gavorskis stated:

The appellant was 39 years old and had 43 convictions for 78 offences between 1996 and 2023. Of relevance were convictions in 1999 for section 20 grievous bodily harm, in 2004 for assault occasioning actual bodily harm and in 2005, for a section 18 wounding with intent. The appellant had multiple other convictions for lesser forms of violence such assault of emergency worker and for offences of dishonesty including burglary. The co-defendants by contrast were lightly convicted and treated as of effective good character by the sentencing judge.

No Sentencing Notes appear to have been provided by any party and no pre-sentence report was ordered. When passing sentence the judge stated that he had considered whether an extended sentence was required but that given the lack of relevant previous convictions for such serious offending the circumstances of the actual incident and the length of sentences to be passed, it was neither necessary or proportionate to pass an extended sentence and the matter could be dealt with by a significant determinate sentence.

Whilst giving due deference to the views of the judge who presided over the trial we observe that dangerousness was very much an issue in this case and that a pre-sentence report should have been ordered. In the absence of a report the judge did not have the fullest information necessary to reach decisions on this issue as to which (see the recent decision of this Court in Rex v Thompson [2025] EWCA Crim 1462).

The judge found that the attempted murder was A2 on the Sentencing Guidelines: Culpability A because the offence was committed with a firearm and harm category 2 as the victim suffered serious psychological harm. An A2 offence has a starting point of 30 years. By passing a sentence of 27 years, it is clear that the judge not only took as a starting point a sentence below that set out in the guidelines, albeit within the category range, but made no uplift to reflect either the additional serious offences for which he had been convicted or the aggravating factor of the appellant's significant previous convictions. Neither was the fact that the offences were carried out in the context of other criminality reflected. In all the circumstances, we are bound to observe that the sentence passed both for the lead offence itself and for the totality of offending was lenient.

The prosecution applied for restraining orders against both the appellant and his co-defendants in the following terms:

No statements were provided from any of the subjects of the proposed restraining orders asking for such orders to be made. However, as noted above, the judge did have victim personal statements from two of the three victims in which they spoke of their ongoing fears and anxieties and had of course heard them give evidence in the course of the trial. The judge acceded to the application. In his sentencing remarks he stated:

On behalf of the appellant Mr Quaife, who appears before us today as he did in the court below, submits in reliance of R v Debnath [2005] EWCA Crim 3472, that the purpose of a restraining order is to prohibit particular conduct with a view to protecting the victim of the offence and, in accordance with Debnath, preventing further offences under section 2 or 4 of the Protection from Harassment Act 1997. He argues that before imposing a restraining order the judge must be satisfied that an order is necessary to prevent a future course of conduct amounting to harassment within the meaning of section 1 of the Protection from Harassment Act or that it will cause a fear of violence. In his written submissions he argued firstly that no course of conduct has in fact been pursued and secondly, that there could not be a future course of conduct given the lengthy sentence imposed. As such, he argued that the statutory test set for the imposition of a restraining order was not made out. Furthermore, he submits that before imposing a restraining order the court should have taken into account the views of the person to be protected by the opposed order. In the alternative he argues that a restraining order was unnecessary given the length of sentence and the conditions that would be attached to the appellant's period of licence on release and in oral submissions today, has further drawn our attention to the terms of the order, some of which he argues are unnecessary.

In the appropriate circumstances and where the necessary tests are met, a court has the power to make a restraining order both on conviction and on acquittal. Prior to amendments made to the Protection from Harassment Act 2009 by the Domestic Violence, Crime and Victims Act 2004 and prior to the coming into force of the Sentencing Act 2020, the power to make a restraining order on conviction was to be found in section 5 Protection from Harassment Act 1997. Section 5 allowed the convicting court to make a restraining order to prevent offences under sections 2 and 4 of that Act.

Section 2 of the Protection from Harassment Act made it an offence to pursue a course of conduct which the offender knew or ought to have known amounted to harassment of another contrary to section 1 of the Act. Section 4 made it an offence to pursue a course of conduct that caused another to fear on at least two occasions that violence would be used against them if the offender knew or ought to have known that their course of conduct would cause the other so fear on each of those occasions.

In R v Debnath (a pre-2009 case), on which Mr Quaife relies and in which a restraining order was made post-conviction, the Court set out the principles to be applied to restraining orders made under section 5 of the Protection from Harassment Act as follows:

As noted above, by the Domestic Violence, Crime and Victims Act 2004, the Protection from Harassment Act was amended from 30 September 2009 by the insertion of two new sections. Firstly, by the insertion of a new section 5A, which extended the power of the court to make a restraining order on acquittal where the court believes that a restraining order is necessary to protect a person from harassment. Secondly, by a new section 12 which amended section 1 of the Act to omit the words "under section 2 or 4", thereby enabling a court to make a restraining order post-conviction for any offence where it was necessary to make an order, either for the purposes of protecting the person named in the order from conduct which amounts to harassment or from conduct which would cause a fear of violence.

Although the power to make a restraining order on acquittal is still to be found in section 5A of the Protection from Harassment Act, the power to make a restraining order on conviction is now to be found in section 360 of the Sentencing Act 2020, section 5 of the Protection from Harassment Act having been repealed.

Section 360 of the Sentencing Act states as follows:

With respect to Mr Quaife, his submissions, particularly those in writing, insofar as they are based on Debnath which was decided at a time prior to not only the Sentencing Act but also to key amendments in the Protection from Harassment Act are misplaced. It is clear from the terms of section 36 of the Sentencing Act that (a) a restraining order may be imposed when dealing with an offender for any offence; the court is not restricted, as it was under section 5 of the Protection from Harassment Act prior to 2009, to offences contrary to sections 2 and 4 of that Act, as Mr Quaife appears to have suggested; (b) there is no requirement either that the offender should have been convicted of a course of conduct, or that an order can only be imposed where necessary to protect the victim from a future course of conduct as was again submitted to us and (c) a restraining order may be imposed to protect the victim from conduct which either amounts to harassment or which will cause a fear of violence. Although it is of course right that a restraining order will most often be imposed in situations in which there has been a relationship between parties with a history of offending behaviour, it is very clear that the circumstances in which and the offences in respect of which a restraining order made be imposed are not circumscribed. Accordingly, there was no bar to the judge imposing an order in this case if it was necessary to do so. Furthermore, there is no statutory test for the imposition of an order under section 360 of the Sentencing Act, although clearly any prohibition attached to an order must be clear, necessary and proportionate for the purposes specified.

In R v Ross [2020] RTR 19, the Court stated that:

In Ross the Court found that there was no sufficient evidential basis. In that case the appellant, who was driving at excess speed, mounted a pavement and hit a 14-year-old boy causing him some relatively minor injuries. The child made a statement in which he stated that he was now fearful to go to the area of the accident and was scared in case he bumped into the appellant who lived nearby, and he was frightened of any reprisals. The judge imposed a restraining order to allay the child's fears. This Court found that the judge had fallen into error in reposing a restraining order for this purpose. The child in that case had not been targeted in the offence and he and the appellant were unknown to each other. Rather the child had been the unfortunate victim of the appellant's reckless actions and, in those circumstances, an order was unnecessary and wrong in principle.

But we are able to draw a distinction between that case and the case before us. Although the victims of the offence in this case were previously unknown to the appellant himself, Gavorskis at least was known to the co-defendant Smales, who identified the victim’s address to the appellant. This was thereafter a planned and targeted attack, in which the appellant was the lead offender upon the victim in his own home. The offence was carried out in the context of other criminal activity and against a background of drug dealing in which the appellant, his co-defendants and indeed Gavorskis were to at least some degree involved. The victims gave evidence in the trial which resulted in conviction and a lengthy sentence. We have already noted the appellant's lengthy antecedents and the previous convictions for offences of violence, but he has in addition multiple offences recorded against him for using threatening words and behaviour, for breach of court orders and, albeit when a youth, for the intimidation of a witness or juror.

Insofar as Mr Quaife's second submission that the judge should have sought the views of the victims before imposing restraining orders, we consider that that was not necessary in this case. The judge had victim personal statements from two of the three victims and was able to take them into account together with the factual evidence that he heard at trial. There will be many situations, especially where the subject and object of the restraining order are in a familial relationship, where the views of the victim will be important and sometimes determinative. But this is not such a situation. We consider that the judge had ample material here from which he could infer the views of the victims without needing further evidence.

Insofar as the third submission which relates to the length and terms of the restraining order, we regard it as being important to note that the terms of the order firstly, prohibit contact whether made directly or indirectly. A person does not have to be at liberty to find ways to make contact. Contact could be ffected from within prison as well from without by the appellant directly or via a third party and the effect on the victim would be the same. The order as is drafted, so far as the first term is concerned, is clearly intended to prevent contact however that contact might be achieved and whether whilst the appellant is still in custody or on release. It does so in what, in our judgment, is a wholly proportionate way. We see there is some force in the submission that the length of sentence and likely terms of licence should go a long way to reducing substantially any concerns. However we return to the fact that the order is designed to prevent contact both whilst the appellant is in custody as well as upon release. The potential licence terms at this stage are wholly speculative. Insofar as the second term is concerned, namely preventing the appellant from going to a place where he is believed to be the subject of the order to be living or working, again we find that this is an entirely proportionate term to include within the order and will prevent the appellant from going to an address and hanging around it in the off chance that he may be able to see the subject of the order whether or not that subject is in fact present at that address at that time.

Insofar as the order as a whole is concerned, in our judgment, it was clear, limited and entirely proportionate. In our judgment, whilst it would have been better for the judge to set out his reasoning in terms, he was in the best position as trial judge to consider whether the orders sought should be imposed. We are satisfied that there was a sufficient evidential basis upon which the judge could properly conclude that they were necessary and, as we have already stated, we see nothing wrong either in the terms of the order as drafted or in the fact that it was made without limit of time. Accordingly, this ground of appeal is dismissed.