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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dix, R. v [2015] EWCA Crim 650 (25 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/650.html Cite as: [2015] EWCA Crim 650

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25th March 2015

1. RECORDER OF REDBRIDGE: On 30th September 2013 in the Crown Court at Newport in the Isle of Wight, before His Honour Judge Hetherington, the applicant changed his pleas of not guilty to guilty to the offences that day he was due to be tried on. On 23rd October 2013 he was sentenced for those offences by the learned judge. For an offence of putting a person in fear of violence by harassment, he was sentenced to an extended sentence of 8 years, comprising a custodial term of 4 years and an extension period in relation to the licence of 4 years. For a second offence of putting a person in fear of violence by harassment, he was sentenced to 10 months' imprisonment concurrent. For a third offence of the same nature, to a further 10 months' imprisonment to run concurrently. For a fourth offence of the same kind, again 10 months' imprisonment, ordered to run concurrently. Lastly, for an offence of arson, he was sentenced to 21 months' imprisonment, again that sentence ordered to run concurrently. The total sentence passed therefore was an extended sentence of 8 years, comprising a custodial term of 4 years and extension period of 4 years. No victim personal surcharge was imposed. An indefinite restraining order was made to prohibit contact with the victim of the harassment.
2. The applicant now renews his application for leave to appeal his convictions after refusal by the single judge. If that application is refused, it will then be necessary for this court to consider the lawfulness and appropriateness of the sentence passed on count 1 on the indictment, in the context, we add, of all the associated offences for which sentences were passed, as the single judge has referred that sentence for consideration by the Full Court.
3. As we have said, the applicant renews his application for leave to appeal conviction after refusal by the single judge and it is right that we should set out the facts of the case.
4. The applicant and the victim, Kirsty Newnham, had known each other for some years following their previous employment at the same public transport company on the Isle of Wight. That had included a short personal relationship in early 2013. In April and May 2013 the victim and other members of her family received hundreds of text messages and calls from a telephone number which ended 9995. Many of the messages threatened physical and sexual violence and many were of a homophobic and racist nature.
5. On 14th May 2014, shortly after midnight, the stables in which the victim's family housed their horses was destroyed by fire. The total value of the damage caused was in the region of £32,500. Fortunately, the horses were unharmed by the fire. Thereafter, further text messages were received by the victim's family which threatened further arson attacks and telephone calls during which the song "Burn Baby Burn" was heard.
6. The applicant was sought in relation to these matters and on 19th May he was arrested. He was found to be in possession of two mobile phones, one of which contained a SIM card using the very 9995 number from which the threatening calls and messages had been received.
7. The prosecution case was that the applicant was responsible for the telephone calls and text messages received by the victim and her family and that these communications had caused them to fear violence (counts 1 and 4 of the indictment) and that it was the applicant who had started the fire which destroyed the stables owned by the victim's mother (count 10).
8. When he was interviewed on 10th May 2014 the applicant denied any involvement in the telephone communications. In a further interview on 14th May 2014 he denied any involvement with the text messages and the fire. Furthermore, on the 19th May,in the last interview, the applicant said he had found the telephone containing the SIM card using number ending 9995 near to his house a few days earlier and had not known what to do with it. He said he had not used it.
9. The matter was, as we say, listed for trial but in the event the applicant pleaded guilty. After an adjournment for counsel to consult with the applicant the matter came before the learned judge before moving to sentence. An application was made by trial counsel, on behalf of the applicant, that he could, if an adjournment was granted, instruct fresh legal representation in order so that they, on his behalf, could seek to persuade the court to vacate his earlier pleas of guilty. Those acting for him stating that they had become professionally embarrassed by what had taken place and were no longer able properly professionally to represent him.
10. The learned judge considered but rejected the application for an adjournment and released counsel and solicitors who had been acting on the applicant's behalf.
11. The applicant, who then appeared unrepresented, applied to vacate his pleas of guilty to counts 1 to 4 on the indictment. He asserted that he had thought he had entered pleas of guilty to harassment charges which did not include the element of putting a person in fear of violence.
12. However, following investigations, which included listening to the audio recording of the clerk of the court arraigning the applicant on the charges in the indictment, the learned judge rejected the application to vacate the guilty pleas and stated that he was satisfied that at the time that those pleas were entered the applicant had been fully aware of the charges on the indictment.
13. In grounds of appeal against conviction, settled by counsel not previously instructed on the applicant's behalf, it has been contended firstly that the judge erred in not allowing the adjournment of the sentence hearing, following the withdrawal of the applicant's former solicitors and counsel. Secondly, that he erred in not allowing the applicant to withdraw his pleas of guilty and thirdly, that in any event, the applicant had been ineffectively represented at trial.
14. In view of those criticisms made of trial counsel and solicitors the applicant agreed to waive his legal professional privilege to enable responses to his criticisms of trial counsel and solicitors to be obtained. We have read and considered for ourselves those responses contained in letters dated respectively 19th and 28th August 2014 (together with the signed endorsement, confirming the applicant's decision to change his pleas to guilty). We have additionally read the applicant's further response to the correspondence from his former lawyers dated 5th September 2014.
15. We turn first to the merits of the renewed application to appeal against conviction. In refusing leave the single judge observed that the applicant contended that he had been pressurised into pleading guilty at trial by his solicitors and counsel and that when they withdrew the judge should have permitted him to vacate his guilty pleas. He concluded though, that it was clear from the responses of his trial counsel and solicitors that he had been properly and competently advised as to the strength of the overwhelming evidence against him and that the applicant had then decided, of his own free will, to plead guilty to the charges he faced, the terms of which, we would add were read out clearly to him on his re-arraignment as recorded by the court audio equipment. The single judge concluded that there was no basis for revisiting the trial judge's decision in his discretion not to allow the applicant to vacate his guilty pleas. In consequence, the application for leave to appeal conviction, in any event being 8 months out of time and in the single judge's view without merit, the was refused. We have ourselves now, given the renewal of those applications, consideration as to their merits.
16. We wholly agree, for the reasons given by the single judge that they are without merit, there being no properly arguable basis for determining that any of the applicant's convictions are unsafe. We find that the applicant was represented by experienced and able trial counsel and concientous solicitors who advised him entirely properly. We are satisfied that the applicant made his own independent decision to plead guilty to the offences, the terms of which he understood and which were in any event fully supported by the available evidence. We therefore refuse the renewed applications for leave to appeal against conviction.
17. We therefore turn to the application for leave to appeal sentence, referred to the Full Court by the single judge. We note that before passing sentence the trial judge had before him victim personal statements from the victim, Ms Newnham, her sister and parents. We have read those for ourselves. The judge was also made aware that the applicant, who was born on 28th July 1987, had only one previous court appearance, which was on 7th December 2001 but that appearance was for two separate offences of arson, committed on different days in 2001, for which he had in consequence been made the subject of a supervision order for 18 months.
18. In sentencing the applicant in the lower court, the judge observed that the offences committed by him, putting a person in fear of violence by harassment (counts 1 to 4), were in his judgment at the top end of seriousness for that category of offence and for the reasons he set out he determined that, in any event, having regard to the whole of the facts, the applicant was a dangerous offender within the meaning of the Criminal Justice Act 2003. He commented that in his view the offences required considerable planning, over a substantial period and involved a campaign of harassment, threats and abuse, including threats of rape, murder and in any event homophobic and racist threats made to multiple victims. In assessing the appropriate custodial sentence the judge gave the applicant a 10% reduction on account of his pleas, as we say, entered on the day of trial.
19. However, the single judge has referred the sentence to the Full Court because as we find, with respect to be entirely correct, as indeed has been identified in one of the documents the applicant has put before us today from Robert Banks, the author of Banks on Sentencing,that it was unlawful for the judge to have passed an extended sentence of 8 years on count 1, given that the maximum sentence for that offence is but 5 years.
20. However, the single judge observed that as the sentencing judge indicated that the lead sentence on count 1 was designed to reflect the totality of all the applicant's associated offences, for which sentence had to be passed (and we would add his overall assessment of the applicant's dangerousness) he was referring the sentences to the full court for it to judge whether to substitute for the sentence imposed on count 1 the lesser sentence within the maximum sentence available but in place of the sentence passed of 21 months' imprisonment for the offence of arson, to substitute for that offence the 8 year sentence passed on count 1, given that the offence of arson is not limited to a maximum 5 years but indeed has a maximum of life imprisonment.
21. We should record that since the single judge referred the sentence to this court, for the reasons we have summarised, the applicant wrote by letter dated 7th January 2015 to the court asserting that the judge erred in imposing the extension period. Secondly, that he had not considered dangerousness. Thirdly, that the extension period was excessive and fourthly, the judge had increased sentence and improperly reduced the discount for the guilty pleas.
22. We should observe that this court has power, under section 11(3) of the Criminal Appeal Act 1968, to quash any sentence which is the subject of an appeal and in its place - we quote from the statute - "pass such sentence, or make such order as it thinks appropriate for the case as the court below had power to pass or make, when dealing with an appellant for the offence." Provided that in exercising its power this court, taking the case as a whole, ensures that the defendant/appellant is "not more severely dealt with on appeal than he was dealt with in the court below".
23. We are satisfied that if we were to substitute for the 21 months' imprisonment sentence for the offence of arson an extended sentence of 8 years, made up, as we have specified, and quash the extended sentence on count 1, replace it with a sentence of 21 months' imprisonment, we would be acting within the powers afforded to us by the appeal statute.
24. We have considered the contents of the applicant's letter to the court, to which we have made reference, and the other documentation which he has helpfully presented to us this afternoon. We find that the judge did indeed consider dangerousness, and that he did not, so far as the overall sentence was concerned, err in taking the course that he did that it was appropriate for there to be an extended sentence, made up as he had directed. The error that he fell in, as we made clear, was in attaching that sentence to count 1 as opposed to count 10, the offence of arson, which also featured on the indictment.
25. We have concluded that the sentencing judge did find, for sound reasons, that in judging the case overall the applicant was a dangerous offender within the meaning of the Criminal Justice Act 2003 and that his finding to that effect and the length of the extended licence period was wholly supported, amongst other things, by the contents of the pre-sentence report and the facts of the case. We note too the previous offending for arson.
26. We therefore have concluded that we should vary the sentence passed on count 1 by substituting for it a sentence of 21 months' imprisonment and vary the sentence on count 10 by quashing the sentence of 21 months' imprisonment and substituting for it an extended sentence of 8 years, comprising a 4 year custodial term and 4 year extended licence. In the light of the progress that the applicant, the references he has supplied to us indicates is making, we feel that that would be of assistance to him in due course when the question of his dangerousness and his proper date of release is further considered. However, we see nothing wrong in the assessment made by the lower court.
27. It has been drawn to our attention, we finally say, that the judge in the court below should have made a victim surcharge order in the sum of £120 but failed to do so. However, given the provisions of section 11(3) of the Criminal Appeal Act to which we have drawn attention and our conclusion that we are not minded to reduce the overall sentence passed in the lower court, we are precluded from rectifying that omission as to do so would be to increase the total penalties that the applicant would face.
28. For those reasons and to that extent the sentences of the lower court are varied.