No.
2006/02676/A8
Neutral Citation Number:
[2006] EWCA Crim 2341
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday  31  July 2006
B e f o r e:
MR  JUSTICE  MACKAY
and
MRS  JUSTICE  COX  DBE
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R E G I N A
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PETER  JOHN  HEGARTY
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
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MR B MILLS
appeared on behalf of
THE APPELLANT
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J U D G M E N T
Monday 31 July 2006
MR JUSTICE MACKAY:
Mrs Justice Cox will give the judgment of the court.
MRS JUSTICE COX:
1. On 20 February 2006, having pleaded guilty before magistrates at the first opportunity, the appellant, now 20 years of age, was committed for sentence for an offence of taking revenge on a witness, contrary to
section 51(2)
of the
Criminal Justice and Public Order Act 1994
. On 11 May 2006, at Birmingham Crown Court, he was sentenced to a term of twelve months' detention in a young offender institution. He now appeals against that sentence by leave of the single judge.
2. The brief facts are these. On 30 January 2006, the appellant's brother was convicted of the attempted rape of a woman to whom we shall refer as "D", and was sentenced to four years' imprisonment. Ten days later, on 9 February, shortly before 8pm, D was accosted in a newsagent's by a woman who told her that she had got her brother "sent down for no reason". The woman asked her outside. D stayed in the shop and contacted the police. About ten minutes later, however, whilst she was on the telephone the appellant came into the shop. He shouted at her, "Why did you get my brother arrested?", and spat in her face. He walked off but returned a few minutes later. He called her a "slag", spat in her face twice, walked towards her, causing her to walk backwards into some shelving, and then slapped the side of her head with his palm and pushed her into the shelving so that she fell to the floor.
3. The appellant was arrested the following day. He admitted the offence, saying that he was drunk at the time. In interview he accepted essentially the complainant's account of events. He was a man of previous good character.
4. Passing sentence the judge observed that the appellant was entitled to maximum credit for his early plea of guilty and for his remorse, which was accepted by the judge as genuine. He described the incident as an outrageous, violent and thoroughly unpleasant attack upon a young woman who had performed her public duty by giving evidence at his brother's trial. That evidence had been accepted by a jury and his brother had been properly sentenced. The courts, the judge said, had to react swiftly and firmly to protect from such attacks those who did their public duty by giving evidence. The offence was so serious that only a custodial sentence could be justified, and that sentence should be one of twelve months' detention.
5. Mr Mills for the appellant submits that, having regard to his early plea of guilty and his extensive personal mitigation, the sentence of twelve months' detention was manifestly excessive.
6. In the particular circumstances of this case there is, in our judgment, considerable force in these submissions. The author of the pre-sentence report noted that the appellant appeared genuinely ashamed of his behaviour and assessed the likelihood of his re-offending as low. The appellant was 20 years of age, of previous good character and with a stable family life. He was working hard to qualify as an electrician. It was accepted that he had acted impulsively and emotionally when under the influence of alcohol and that he had regretted the offence immediately. Whilst the pre-sentence report recommendation was for a community penalty, we agree with the judge that this offence crossed the custody threshold. Witnesses giving evidence at criminal trials should be protected from attacks of this nature and the courts should and do make it clear that such offences are so serious that only a custodial sentence is justified. However, given the circumstances of this offence and of this offender, and in particular since this was the appellant's first appearance before the courts and therefore his first ever period in custody, we agree that twelve months' detention was manifestly excessive. In the circumstances we propose that the term of twelve months' detention shall be quashed and substituted by a term of four months' detention. To that extent and for these reasons this appeal is allowed.