Update: crime and sentencing

In R v James, Ingram and another [2008] EWCA Crim 765, Mr James and Mr Ingram were responsible for the day-to-day running of a bar and were concerned in the retail sale of cocaine to customers. They entered guilty pleas to a charge of conspiracy to supply a Class A drug and were each sentenced to ten years' imprisonment.

The Court of Appeal identified the use of licensed premises for drug dealing as a significant aggravating factor and reviewed the usual authorities. No authority was, however, 'entirely in line' with a case where 'drugs were available to the public, on request at licensed premises, provided by the management of those licensed premises'.

The court made clear that there was 'every possible distinction between low-level street dealing and what was being transacted in the present case' and suggested that sentences should deter against the temptation to deal in drugs on licensed premises. Nevertheless, the court accepted that too high a starting point had been adopted in this case and reduced the sentences to eight years' imprisonment.

In R v Lunn [2008] EWCA Crim 2082, Mr Lunn was the manager of a public house and allowed cannabis to be smoked there by his customers. He was convicted after trial of an offence under section 8 of the Misuse of Drugs Act 1987 and sentenced to 30 months' imprisonment.

The Court of Appeal conducted a review of the authorities but found no reported case of this offence involving licensed premises. It was, however, clear that the case of someone in Mr Lunn's position would normally be substantially more serious than that of a defendant permitting a private house to be used for the smoking of cannabis. This was because drug taking in a public environment makes it seem an acceptable activity so that others may be encouraged to share in it and take it up; it also encourages drug dealing in licensed premises. The court upheld the sentence.

It seems an obvious proposition that the permitted use of drugs or organised sale of drugs on licensed premises is more serious than the permitted use of drugs in the home or street dealing, but it is apparently not a proposition that the Court of Appeal has plainly stated until now. The reasoning behind the court's approach to these cases is that the public duty of those running licensed premises to prevent drug use is a more onerous burden than the responsibility of an ordinary member of the public to do the same in the private domain. When the manager of licensed premises goes further and abuses his position to sell drugs for profit, that same public duty means his crime is to be treated as more serious than that of a street dealer.

False allegations of rape

R v Beeton [2008] EWCA Crim 1421 concerned the making of four separate complaints of a series of violent rapes against a 17-year-old boy over the course of many months. The Court of Appeal described the facts of the case as remarkable, there having been no sexual contact between Mrs Beeton and the boy whatsoever and there being no real explanation as to why she had targeted him as the subject of these false allegations. Mrs Beeton entered guilty pleas on the first day of her trial and was sentenced to four years' imprisonment.

The Court of Appeal reviewed the previous decisions in this area and concluded that 'the consequence of a false allegation of rape will almost inevitably be a custodial sentence'. In this case, giving full credit for the guilty plea, the Court of Appeal substituted a sentence of three years' imprisonment.

If Mrs Beeton's case was remarkable, the case of R v McKenning [2008] EWCA Crim 2301 involved more familiar facts. Ms McKenning had engaged in consensual sex with a man she had met in a bar while her boyfriend was in prison. When found out by two friends of her boyfriend, she made an allegation that she had been drugged and raped. Eventually, thanks to the evidence of witnesses from the bar as to what had actually happened between Ms McKenning and the man, her lie was exposed and, once charged, she entered a guilty plea at the first opportunity. The Court of Appeal again reviewed recent cases but refused to interfere with a sentence of two years' imprisonment.

In both Beeton and McKenning, the court drew particular attention to an aggravating feature of such false allegations over and above the impact on the subject of the allegations: the damage to the administration of justice. In Beeton, the court said: 'It is well known that the conviction rate for rape compared with the number of allegations made is low, when contrasted with many other offences. For obvious reasons, a jury is often confronted with very difficult decisions on credibility.' In McKenning, the Lord Chief Justice added: 'Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime. It makes the offence harder to prove and, rightly concerned to avoid the conviction of an innocent man, a jury may find itself unable to be sufficiently sure to return a guilty verdict.'

This additional aggravating factor does not seem to have played any significant part in the previous decisions of the court that were reviewed and referred to, but will be an important consideration for a sentencing judge faced with any similar case from now on.

Conspiracy to commit criminal damage

In R v Pease and Others [2008] EWCA Crim 2515, Mr Pease and his co-appellants were members of a group of graffiti artists known as the DPM (Don't Push Me) Crew. Both the sentencing judge and the Court of Appeal acknowledged that the group was made up of talented graffiti artists '“ one of the appellants had actually been hired by the BBC to 'add realism' to sets of Eastenders by applying the DPM 'tag'.

The judgment of the Lord Chief Justice doesn't make clear whether he is a regular viewer, but apparently the DPM graffiti can still be seen outside Ian Beale's fish and chip shop, Kathy's Café and Phil Mitchell's workshop.

Artistic value of the gang's 'work' aside, the court stressed that this conspiracy to commit criminal damage was a serious offence. The appellants had vandalised trains, rolling stock and other infrastructure in London, across the UK and in Europe. The damage caused was impossible to quantify because the conspiracy was so large, but the Crown's case was that the repair bill was likely to run into millions of pounds. Furthermore, the public, while not endangered by the damage, were inconvenienced when vandalised trains were taken out of service.

The court upheld a sentence of 24 months' imprisonment after a late guilty plea against the gang leader and sentences between 15 and 18 months for other gang members, all of whom were of previous good character.

Child cruelty

R v Will S [2008] EWCA Crim 1662 concerned sentencing in relation to child cruelty through isolation rather than violence or deprivation. Mr Will was a man of good character who entered guilty pleas to two charges of causing cruelty to his five-year-old stepdaughter. He subjected her to a particularly harsh and inappropriate regime of discipline. She was sent to her room for long periods, sometimes for days at a time and was shouted at and made to feel unwanted. There was no physical violence (save for that Mr Will had on one occasion put sticky tape over the girl's mouth when she had shouted at her sister) and the girl had been free to leave her room to get drinks, attend meals, visit the lavatory and go to school.

The sentencing judge took the view that this case fell within the second of four categories of seriousness established in the sentencing guidelines for this type of offence. The Court of Appeal said that a problem with the guidelines here was that Mr Will was not in any way 'abusing' the child and the guidelines were aimed towards much more serious cases. The Court of Appeal substituted for a sentence of 30 months' imprisonment a community order of two years with a supervision requirement including a good parenting course.

Child abuse and blackmail

In R v M [2008] EWCA Crim 1915, a man who was abused as a child blackmailed his abuser 26 years after he was sexually assaulted. He approached his abuser and demanded money to keep the abuse a secret. He obtained £5,000 but went on to demand £50,000, making threats of violence and threats to kill in the process. Mr Scott was of previous good character and had been treated for psychological problems arising from his abuse as a child. He was sentenced to four years' imprisonment after a guilty plea.

The Court of Appeal viewed the incident as an attempt to obtain money with threats of serious violence rather than blackmail to expose the abuse. The psychological problems arising from the abuse and guilty plea were however significant mitigating factors and the sentence was reduced to two years and eight months' imprisonment.