R v Phillipe Dookhun

This is our judgment on the hearing of the applicant’s renewed application for leave to appeal out of time against his conviction, on 23 November 2023, of one offence of stalking (count 2) and one offence of harassment (count 3). Two further charges (counts 1 and 4) were directed to lie on the file.

The application was filed 390 days out of time; it was refused on the papers by the single judge. The applicant now renews his application for an extension of time and leave to appeal, also making an application for leave pursuant to section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence.

The applicant and his former wife (“C1”) were a couple for over 20 years and had three children together. They separated in 2020 but were in an on-and-off relationship until April 2021 when C1 applied for a divorce. C1 moved out of the family home in July 2022.

The relationship between the applicant and C1 had been difficult. The applicant was volatile, manipulative and threatening and it was because of his behaviour that C1 eventually made arrangements to leave the family home and for a divorce.

Once C1 had moved out of the family home, the applicant sent unwanted messages from his phone and alternate numbers; he monitored C1’s movements, would watch her, and would inundate her with messages referring to her cheating. The applicant was arrested and released under investigation, but the behaviour continued. The applicant’s behaviour in respect of C1 was the basis for the offending charged by count 2.

The second complainant (“C2”) was a third party who worked with C1; the applicant became fixated with him. He sent C2 messages, again from his own phone or alternate numbers, some of which were threatening in nature, accusing C2 of having an affair with C1. These matters constituted the basis for count 3.

Although the applicant acts in person in the current proceedings, he was represented by solicitors and counsel below. At the plea and trial preparation hearing (PTPH) on 4 September 2023, the applicant entered not guilty pleas to what were then four counts on the indictment against him. After a conference with counsel on 1 November 2023, there were discussions between the parties and, on 23 November 2023, the applicant entered guilty pleas to counts 2 and 3, with counts 1 and 4 being ordered to lie on the file on the usual terms.

On 21 March 2024, the applicant was sentenced to a term of 55 months’ imprisonment on count 2, with a term of 12 weeks’ imprisonment concurrent on count 3. Ancillary orders were also made.

On 9 April 2024, the applicant filed an application for leave to appeal against sentence; that application was refused by the full court by order of 12 December 2024.

On 14 January 2025, the applicant filed the current application for leave to appeal against conviction, over a year out of time.

The application for leave includes an application for an extension of time, the applicant explaining that, after the hearing, he was told by his lawyers that he had no prospects of successfully appealing because he had pleaded guilty; he was in shock, confused about what had happened, and had been under treatment for depression and shut down on himself, taking time to process what had happened.

The only medical evidence we have seen is a letter from the South Kent Coast Mental Health Team of 12 October 2023, advising the applicant that the doctor had been unable to detect any mental illness, depression, delusions or psychotic symptoms requiring the support of secondary health mental health services and recording the applicant’s agreement that he should be discharged from the service. We do not accept that a good explanation has been provided for the lengthy delay in this matter. Notwithstanding our view in this regard, we have, nevertheless, gone on to consider whether there is any merit to the appeal, as we accept that would be a relevant factor in considering whether to grant any extension of time.

The applicant has also made an application to adduce fresh evidence, in the form of statements from his mother and his aunt. We have read the statements in question and are satisfied that there is no prospect that these would be admitted pursuant to section 23(2) Criminal Appeals Act 1968. There is no reasonable explanation for why the witnesses could not have been called below but, in any event, the evidence would not afford any ground for allowing the appeal; as the single judge observed:

“In circumstances where there is no prospect of your being allowed to vacate your guilty pleas, there is no prospect of the Full Court admitting what you describe as ‘fresh evidence’. That evidence has no bearing on the key question whether you knew what you were doing when you pleaded guilty, and it would not have afforded you any viable defence to the two counts in question even if there had been a trial and you had sought to adduce it.”

Turning to the notice of appeal, we record that the applicant seeks to advance eight grounds of appeal and that he also makes a number of complaints against his former lawyers, in particular suggesting that their failings resulted in his entering guilty pleas on counts 2 and 3.

As the single judge observed, a guilty plea is not a bar to an appeal, as the ultimate question for the court is whether the convictions are safe, but it is a significant obstacle. We, like the single judge, have taken the time to read all the applicant’s criticisms of his former lawyers, their responses, and the applicant’s further submissions in reply. We have also noted the information provided by the prosecution in the respondent’s notice, and the applicant’s reply to this document, and have had regard to the trial documentation available to us on the Crown Court digital case system (which includes the court logs for each of the hearings). We are satisfied that there is nothing to suggest that, at the time of entering his pleas, the applicant was not fit to plead: we note that counsel does not agree that the judge ever said the defence should obtain an independent mental health assessment prior to entering his pleas, and there is nothing to support such an assertion in prosecution counsel’s notes for any of the hearings in question, nor in the record of the hearings on the Crown Court digital case system, nor does any record in this regard appear on the court log for any of the hearings; indeed, the judge’s record on the digital case system is clear that the only reference to possible defence medical evidence was made after the applicant had entered his pleas, as might be relevant for sentence. We further note that, at the hearing on 23 November 2023, the applicant had the benefit of legal advice, and there is an attendance note recording his admission of guilt in relation to the stalking count, albeit he did not accept all the facts alleged by the prosecution. It is apparent that the applicant was advised as to the potential risks of entering a basis of plea but that the choice was his. The applicant is recorded as saying that he would follow the advice and “just enter his pleas without basis”.

More generally, we note that around a year after the hearings in question, the applicant has sought to raise criticisms against his former lawyers, complaining of poor preparation, lack of understanding of his instructions, and of allegedly pressurising him to plead guilty against his will. Having, as we have said, considered all the material available to us in this regard, we are entirely satisfied that there is no prospect in any of those criticisms being held to be well-founded; as the single judge observed:

“You claim to have no recollection of some of the conferences, including the one on 19 February 2024. Therefore, you are not in a position to challenge the record of those conferences in the contemporaneous attendance notes. That record supports the account of events given by your counsel and solicitors and does not support what you now say. You were advised in robust (but appropriate) terms of the strength of the evidence against you and that you were likely to be found guilty of all the counts on the indictment if you proceeded to trial. That was sound, realistic advice; you admitted sending the deeply unpleasant text messages which were the most powerful evidence relied on by the prosecution on the harassment count, you had made damaging admissions in your police interview, and far from being unsafe, a conviction on that count was virtually inevitable. The same is true of the stalking offence, even on the basis of the facts you admitted. Even if your purpose was to obtain evidence for use in the divorce proceedings that would not have afforded you a defence. The questions for the jury would have been (i) whether the course of conduct you adopted caused your wife to fear that you would use violence towards her or caused her serious alarm and distress which had a substantial adverse effect on her usual day to day activities, and if so (ii) whether a reasonable person in your position would think that the course of conduct would cause her such fear, alarm or distress. Her evidence in that regard would have been supported by your children. None of the statutory defences was available to you. It is clear that having taken appropriate advice you decided to plead guilty and obtain the appropriate credit for doing so. You then changed your mind, apparently because you feared an adverse impact on your position in the divorce proceedings, which is not a proper basis for vacating a plea. If you intended to plead guilty at the time and did so of your own free will, as I am satisfied you did, then you cannot have second thoughts.”

Turning to the individual grounds of appeal, for the reasons we set out below, we are satisfied that these are without merit.

Ground 1: this relates to the pre-trial and preparation hearing on 4 September 2023; the applicant alleges that his representative had “already made the decision of a guilty plea for stalking & harassment in defiance of proper instructions”; he makes further complaints about the competence of his legal representation at this stage. For the reasons we have already provided, we are satisfied there is no merit in the complaints made against the applicant’s former legal team. We accept counsel’s response in relation to the hearing on 4 September 2023, which is corroborated by the attendance note made that day. It is apparent that counsel had prepared for the hearing and that the applicant was appropriately advised; it is equally apparent that the applicant determined (as was his right) to enter not guilty pleas and did so. This ground of appeal is hopeless.

Ground 2: this relates to count 1, in respect of which there is no conviction against which an appeal can lie.

Ground 3: this relates to count 2 (stalking). The point of challenge is difficult to understand but suggests an overlap with the divorce proceedings and seemingly includes an assertion that the unreasonable behaviour for the period of October 2022 was for the purpose of gaining evidence for those proceedings; as the single judge observed, that would not have afforded a defence to the criminal charge. In any event, even aside from the significant evidence served as part of the prosecution case, it is apparent from the contemporaneous attendance notes of 1 and 23 November 2023, that the applicant made admissions in relation to the stalking offence and, having been appropriately advised, determined to plead guilty to this count without a basis of plea.

Ground 4: this relates to count 3 (harassment). The applicant says C2 was a named witness in the divorce proceedings and first reported harassment on 21 September 2022, the same day C1 denied knowing anyone with C2’s name; he further states that both C1 and C2 reported harassment at the same time prior to the divorce hearing. Again, however, such links with the divorce proceedings (and apparent attacks on the credibility of the complainants) go nowhere: not only was there significant evidence served as part of the prosecution case, the applicant also made admissions in respect of this offence in conference with his lawyers, again evidenced by the attendance notes of 1 and 23 November 2024, and, having been appropriately advised, determined to enter a guilty plea without a basis.

Ground 5: this relates to count 4, in respect of which there is no conviction against which an appeal can lie.

Ground 6: by this ground the applicant makes complaints about his former lawyers, specifically stating that there was a rushed conference in late November 2023 and that he felt “scared and trapped with no option other than coercion into a guilty plea”. This, we are satisfied, is nonsense. A full conference with counsel took place on 1 November 2023. We have seen counsel’s notes made in preparation for the conference and the attendance note written up afterwards; it is apparent that counsel had fully prepared and gave clear and appropriate advice. There is nothing to suggest that the applicant felt “scared and trapped” and it is apparent that the conference lasted just under an hour, with no indication that the applicant needed more time. The attendance note records that the applicant:

“had effectively no counter to Count 3, and that for Count 2, he admitted to some of the factual matrices of the stalking, although not all of the facts, and that that had to be considered against the weight of the evidence as a whole that he instructed us to offer pleas.”

Ground 7: this ground relates to the plea hearing on 23 November 2023, when the applicant contends that his “instruction for a Newton Hearing was ignored”, and says counsel put him “in a position of vulnerability and confusion” and that the court “again reminded Counsel of an independent mental health assessment”. Once again we are satisfied that these complaints are without merit. As counsel’s contemporaneous attendance note for the hearing on 23 November 2023 records, there was a discussion regarding a basis of plea and the possibility of a Newton hearing, with counsel advising “we would not recommend a Newton but the choice was his”. It is also apparent that there was a further discussion of the merits and of the possibility of the applicant changing his mind; it was again made clear that the choice was for the applicant, and he made clear he would enter his pleas without a basis. As for the reference to a mental health assessment, it is apparent (from the judge’s notes on the digital case system) that this was first raised only after the applicant’s pleas had been entered and that this was by the defence (that is made clear by counsel’s attendance note of 23 November 2023). We are aware that the applicant pursued a separate appeal against sentence; the reference to a medical assessment might have been relevant for that but it has no relevance to his appeal against conviction.

Ground 8: this relates to the sentencing hearing. We note that a separate appeal was advanced, and refused, in respect of sentence; the points raised under this ground can have no relevance to the current appeal.

Having addressed each of the grounds of appeal individually, we have stood back and considered whether, viewed as a whole, there is any arguable point of challenge that would warrant the grant of leave. We are satisfied there is not. In this regard, we cannot improve on the remarks of the single judge:

“Applying the correct legal principles (which are accurately summarised in the Respondents’ Notice) there is no basis for treating your pleas as vitiated. Your counsel was obliged to give you realistic advice, unpalatable though it may have been, and he did so. ... None of your grounds is arguable, let alone sufficiently arguable to cross the threshold for leave.”

Since the applicant’s proposed appeal is without merit, nothing would be served in granting an extension of time in this case, and we therefore refuse that application. We, like the single judge, consider this application to have been totally without merit and we have considered whether we should mark this by imposing a costs order on the applicant, as the single judge warned was a possibility (for completeness, we note that a loss of time order is unavailable in this case as the applicant is no longer in custody). We understand, however, that costs relating to the obtaining of transcripts were in fact incurred in the sentence appeal and we have not been advised of any further costs that the applicant might properly be ordered to pay as a result of this renewal.

We therefore refuse the applicant’s applications and certify this matter as totally without merit but make no further order.