R v Zaron John Gordon Benson

Reports and material in mitigation

The sentencing judge had the benefit of a pre-sentence report and a report from Berkshire NHS Liaison and Diversion Services. In his account to the author of the pre-sentence report the applicant stated that at the time of the offence he was highly intoxicated, had been unable to sleep due to noise coming from the upstairs neighbours and was experiencing suicidal thoughts. He described his actions as a cry for help and stated that he had no intention of causing an explosion, although in the report writer's view his actions went beyond impulsivity. It was considered that the applicant had significant deficits in thinking and behaviour and his ability to regulate his emotions and anger. He was regarded as a risk to himself and to others, particularly if under the influence of alcohol when experiencing a decline in his mental health and when unable to manage his emotions in response to conflict. The liaison and diversion report confirmed that the applicant had a long history of self-harming behaviours and that he had made a number of apparent suicide attempts. It was noted that self-harm and suicidal thoughts were heightened when he was intoxicated. He had anxiety and depression but no diagnosis of any psychiatric disorder.

Sentence

The sentencing judge found that on the facts of the case this was culpability level A as this was a serious and deliberate act in which threats were made to use a significant level of violence. She found that the victim of the offence was the person to whom the threats were actually made, this being the call handler for the emergency services rather than the neighbour who was the object of the threats, and that therefore it was harm category 3. An A3 offence has a starting point of 1 year and a sentencing range up to 2-and-a-half years.

The judge further took into account, when assessing the seriousness of the offence, the effects upon the intended victim, who was caused serious psychological harm when she found out about the threat when she was evacuated. The judge concluded that the circumstances of the offence as a whole were so serious that they took it to the top of the sentencing bracket for a category A3 offence (ie 2-and-a-half years).

The judge further found that the applicant's previous convictions, in particular his conviction for a section 18 grievous bodily harm, was a seriously aggravating factor, as was his alcohol use, which in her view "cancelled out" what limited mitigation was available to the applicant as a result of any mental health difficulty. She concluded that the aggravating features were such as to justify an uplift of 12 months to reach a sentence of 42 months, before a reduction of one-third to reflect the applicant's early guilty plea, thereby reaching a sentence of 28 months' imprisonment.

Submissions

Ms Cawkwell, who appears before us as she did in the court below, submits that, firstly, the judge placed too great a weight on aggravating factors, resulting in a disproportionate uplift from the starting point. She argues that the effect on the neighbour, who was not the victim for the purposes of the offence, and who was not aware of the threats made until she was evacuated, did not warrantan increase to more than double the starting point; and further, that the nature of the threat as a whole had already been taken account of when placing the offender's culpability in the highest category. In addition she argues that a further uplift by nearly a third of the total sentence for the aggravating factors of the single relevant previous conviction and the applicant's intoxication was both unjustified and excessive.

Secondly, she argues that insufficient account was taken of the applicant's mitigating factors, principally his poor mental health that had caused him to make repeated attempts on his own life, and his dependency on alcohol as evidenced from the liaison and diversion report, as well as his remorse.

Finally, Ms Cawkwell argues that had the judge taken a more proportionate view of the aggravating and mitigating factors, she may have reached a sentence of such length that proper consideration could have been given to whether that sentence should be suspended.

Discussion and conclusion

We are grateful to Ms Cawkwell, who has appeared before us today pro bono to make this renewed application, for her very clear written and oral submissions which she has ably advanced towards us today. We have considered those submissions with great care. It is clear that for the purposes of the guideline the victim is the person to whom the threats were made — here the call handler — and not the object of those threats — the neighbour. Although the call handler was caused some degree of distress when listening to the threats being made by the applicant to kill himself and his neighbours, there was and is no dispute that the judge correctly categorised this offending as A3 in the sentencing guidelines. However, it was in our judgment highly relevant when considering whether and to what extent the sentence should move up within the sentencing range, to consider the level of the threats made, both the seriousness of the threat and the extent to which the appellant was prepared to carry it out. The judge found that the appellant had made a serious and deliberate attempt to carry out his threat. The level of gas was deemed to be dangerously high requiring an evacuation, and indeed it was only through the quick deployment of the emergency services that an explosion was averted. These were all highly relevant factors that the judge correctly took into account when assessing the overall seriousness of the offence and which in her judgment placed it at the top of the sentencing range for an A3 offence.

The judge then considered the aggravating and mitigating factors. She did not discount the applicant's mental health difficulties but she judged that it was his self-inflicted intoxication through alcohol that was the predominant factor. The contents of both the pre-sentence report and the liaison and diversion report supported this conclusion. In the circumstances there was in fact little mitigation that could properly be relied upon.

Furthermore, the applicant had a number of previous convictions for offences of violence, including in 2017 when he received a sentence of 8 years' imprisonment for an offence contrary to section 18 of the Offences Against the Person Act, in which in a "road rage" type incident he used his vehicle as a weapon to deliberately run down another road user who had got out of his own vehicle to remonstrate with the appellant about his manner of driving. The judge was correct to regard this as a further aggravating factor. The combination of aggravating factors set against the backdrop of an ongoing neighbour dispute required and justified a further uplift in sentence before the reduction of one-third for the total for the applicant's guilty plea.

We have carefully considered whether the degree by which the judge uplifted the sentence to take account of these aggravating factors resulted in a sentence that was manifestly excessive. However, we have concluded that whilst arguably a severe sentence, the sentence reached was not outside the range of sentences that the judge could have imposed. Although the offence came within a relatively low category on the guidelines as they are currently structured, as we have already observed, the context in which the offence took place was exceptionally serious. The fact that the applicant not only intended that the person hearing the threat would believe that the threat would be carried out (which is one of the ingredients of the offence) but also in fact intended to carry out that threat and to do so imminently, and went a considerable way towards achieving that end is not something that is specifically covered by the Threat to kill Guideline but is clearly a highly relevant factor that should be taken into account on sentence, as indeed the judge did on this occasion. We would add that because of that, even if we had been persuaded that a sentence of or below 2 years could have been passed (which we are not) this is a case in which only an immediate sentence of imprisonment would have been appropriate.

In all of the circumstances and for the reasons given the application is therefore refused.