Mark Hillman [2019] EWCA Crim 1437

Mark Anthony Hillman v Regina [2019] EWCA Crim 1437 concerned an appeal against sentence by the Court of Appeal (Lord Justice Holroyde, Mr Justice Phillips and Her Honour Judge Molyneux sitting as a judge of the Criminal Division) in which the appellant’s renewed application for leave to appeal was dismissed.

On 21 January 2019 in the Crown Court at Swindon Mr Hillman pleaded guilty to acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 and to stalking involving fear of violence and serious alarm or distress contrary to section 4A of the Protection from Harassment Act 1997. He also admitted breach of a suspended sentence. On 14 February 2019 he was sentenced to 22 months’ imprisonment on count one, three months’ imprisonment concurrent on count two, and the suspended sentence was activated with a term of two months consecutive, giving a total sentence of 24 months’ imprisonment.

The appellant and complainant began a relationship in January 2018. The complainant found the appellant possessive and jealous and ended the relationship in May 2018. The appellant refused to accept the end of the relationship and began to harass her. The police warned him not to contact her but he ignored that warning. In June 2018 the appellant pleaded guilty to an offence contrary to the Malicious Communications Act 1988, having sent a voicemail threatening to break into the complainant’s house, beat up her son and damage his car. On 3 July 2018 he was given a 12 month community order with a rehabilitation activity requirement and a restraining order prohibiting him from contacting the complainant. The following day he breached the order by approaching her, making an offensive gesture, using abusive language and saying “This isn’t over”. On 5 July he was given a further community order. Between 5 and 8 August there were further breaches consisting of voicemail messages. On 9 August he was given a suspended sentence of 12 weeks’ imprisonment suspended for 12 months. Between 16 and 20 August he left a series of voicemail messages for the complainant. Count one on the indictment related to the breach on 16 August. Count two covered the period from 4 July to 20 August.

The sentencing judge referred to the guidelines and placed the breach of restraining order in category 2A. The breach was persistent and the harm was in category two because the complainant had suffered serious distress but not very serious distress placing it within category one. The starting point was one year’s custody with a range from a high level community order to two years’ custody. The appellant was 40 years old with 27 convictions for 74 offences, many involving breaches of community orders and driving whilst disqualified. He was in breach of the suspended sentence passed on 9 August and had persistently ignored court orders. The judge stated that having regard to the previous convictions and continued and flagrant disregard for every opportunity given to him he should move outside the guidelines and take a starting point of two and a half years. He applied a discount of 25 per cent for the guilty plea resulting in a sentence of 22 months on count one. For the stalking offence, which had a maximum sentence of six months, the judge said he would have taken a starting point of five months but had regard to the principles of totality and reduced it to three months concurrent. He activated the suspended sentence reducing it to two months consecutive.

The appellant sought leave to appeal on two grounds. First, he submitted that the judge should not have sentenced without a pre-sentence report. The case had been adjourned for a report on 21 January but the Probation Service declined to prepare one, citing the appellant’s previous non-compliance as a reason why non-custodial options would not be considered. The appellant said he had learning difficulties, a history of mental and physical problems and alcohol and drug dependency, and the lack of a report deprived him of evidence on these matters and mitigation. Second, he contended that the judge erred in placing the offence in too high a category within the guidelines.

The Court of Appeal rejected both grounds. As to the first ground, the court noted that section 156(4) of the Criminal Justice Act 2003 provides that a judge is not required to obtain a pre-sentence report if of the opinion that it is unnecessary to do so. The judge had made his reasons clear, stating that if the appellant had a low mental age that fact would have been raised by the Probation Service or his lawyers over the preceding 12 months, and that he was satisfied the appellant clearly knew what he was doing and knew it was wrong. The Probation Service had taken the view that given the appellant’s wilful non-compliance with community orders and breach of a suspended sentence there was nothing they could offer. The appellant was represented by counsel capable of advancing mitigation and a custodial sentence was inevitable. Notwithstanding that an earlier hearing had directed the preparation of a report, the judge was entitled to conclude that a report was not necessary and was justified in proceeding without one. The court was also satisfied that a report was not necessary at the appellate stage.

As to the second ground, the court held that the judge had correctly placed the offence within category 2A, as persistent breaches even on the day covered by count one led to culpability A. The harm was correctly categorised as category two, being harm but not amounting to very serious harm or distress. The judge correctly identified aggravating features which justified an upwards departure from the guidelines. This was the third time the restraining order had been breached, all within a very short time of the order being made. The appellant was in breach of a suspended sentence order and had multiple convictions for offences involving breach of court orders including breach of community orders and offending whilst on bail. The sentence for count one had to be considered against the background of those breaches and also count two. The judge made clear he had listened to careful mitigation advanced on the appellant’s behalf and made reference to the appellant’s mental age. He applied the principles of totality and gave appropriate discount for plea. The sentence for count two was made concurrent and the suspended sentence was activated with a reduced term of two months.

In short, the Court of Appeal held that the total sentence of 24 months was not manifestly excessive and dismissed the renewed application for leave to appeal.