Asan [2019] EWCA Crim 896

In R v Asan [2019] EWCA Crim 896 the Court of Appeal allowed an application by the Attorney General under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a suspended sentence imposed on Mr Shahib Asan for harassment, perverting the course of public justice, and related offences.

Mr Asan, a former Special Police Constable, had pleaded guilty to criminal damage, putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997, and two counts of perverting the course of public justice. He was also convicted after trial of a further count of harassment. The sentencing judge had imposed a total of twelve months’ imprisonment suspended for twenty-four months with one hundred and eighty hours of unpaid work.

The offending arose from the breakdown of a brief relationship between Mr Asan and a seventeen-year-old woman, AS, in 2016. Between August 2016 and April 2017 Mr Asan conducted a prolonged campaign of threatening conduct and harassment against AS and her family. In August 2016 he damaged her car with paint stripper and left a threatening letter purporting to be from a fictitious ex-girlfriend of AS’s new boyfriend. This was followed by a series of further letters and text messages sent to AS and her father, MS, containing offensive language, threats of serious violence including knife attacks and arson, references to harming children and other family members, and threats to post intimate images online. The messages boasted of the psychological manipulation being deployed to instil fear. Mr Asan’s identity was established through CCTV footage, fingerprints on letters, and cell-site analysis. When confronted by his parents he agreed to buy the damaged car on condition the police were not contacted. After his arrest in November 2016 he was bailed with conditions prohibiting contact with AS and MS.

Whilst on bail Mr Asan attempted to mislead police into believing he had been framed by hackers. In November 2016 he contrived to open in front of a fellow Special Constable an email he had sent to himself purporting to be from someone who had engaged hackers to plant incriminating evidence on his devices. He feigned shock, and the colleague provided a witness statement about the incident. Between January and March 2017, in further breach of his bail conditions, Mr Asan sent numerous text messages to MS containing detailed explanations of how the supposed hackers had manipulated GPS data, telephone metadata, and other electronic evidence to frame him, whilst continuing to make threats to the family including references to “straps” (guns) and to posting images of AS online. In interviews he denied all involvement.

In August 2018, two days before his trial was due to commence, Mr Asan entered guilty pleas to the counts on the second indictment on a full-facts basis. Unbeknown to the prosecution, on the evening of 15 August 2018, shortly after meeting with his legal advisers, a newly activated mobile telephone was used to make silent calls to MS from near Mr Asan’s home address whilst Mr Asan was in fact at a Starbucks some distance away, creating an alibi supported by CCTV footage and a witness. The following day seventeen further threatening messages were sent to MS in the same style as the earlier offending, boasting about the psychological manipulation employed and threatening that the family would end up like “Swiss cheese”. The messages included a reference to a private medical matter concerning AS which few people knew about, including Mr Asan’s father. Cell-site analysis showed the messages originated near Mr Asan’s home but appeared to travel along the A46, whilst CCTV confirmed Mr Asan had not left his address. The prosecution case at trial, which the jury accepted, was that Mr Asan had used message-delaying technology on a Samsung handset to create a false alibi and thereby undermine the imminent trial by demonstrating he was still being framed. Mr Asan was convicted of a further offence of harassment contrary to section 4(1) of the 1997 Act.

Before the sentencing judge there were victim personal statements from AS, MS, and AS’s mother LS. AS described being unable to trust anyone, suffering panic attacks, losing confidence, feeling isolated, and being unable to function normally at work or use social media for fear of the offender. MS described the family’s world being turned upside down, living in constant fear and anxiety, being unable to sleep or protect his family, and suffering depression requiring lengthy sick leave and a career break. He was no longer able to work with Mr Asan’s father and had to travel daily to Nottingham. LS described the family’s life as a “constant hell” and fear of future revenge. Mr Asan had no previous convictions and had been a productive young man before the offending, but had lost his career prospects as a Special Constable.

The Attorney General submitted that the sentence was unduly lenient whether considered overall or in its component parts. The offences were serious, persistent, and sophisticated, causing great harm to the victims, with numerous aggravating features including commission whilst on bail in breach of conditions, and the offences of perverting the course of justice involved the use of police colleagues to bolster the deception. The court accepted that submission.

Lady Justice Sharp, giving the judgment of the court, held that it was difficult to comprehend how the sentencing judge had reached his conclusion. The judge’s brief sentencing remarks contained no reference to matters central to passing an appropriate sentence, including no analysis of the seriousness of the offences, no reference to relevant sentencing principles or applicable guidelines, and in particular no mention of the Intimidatory Offences Definitive Guideline to which he was obliged to have regard. The court considered that the harassment offences fell within category B1 of that guideline (high culpability and high harm) with a starting point of 2.6 years and a range of one to four years’ custody, or even category A1 (very high culpability) with a starting point of five years and a range of 3.6 to eight years. Three out of four factors indicating high culpability were present: conduct intended to cause maximum fear or distress, a high degree of planning and sophisticated offending, and persistent conduct over a prolonged period. Two factors indicated category 1 harm: very serious distress and considerable changes to lifestyle. A starting point at the top of the B1 range was appropriate.

Aggravating features included that much of the offending was committed whilst on bail and in breach of bail conditions, threats of increasing gravity including multiple threats to kill directed at a number of people including children and the elderly, derogatory remarks and threats to post intimate images, and persistent and increasingly sophisticated attempts to pervert the course of justice including using police colleagues who were thereby exposed to risk of investigation and dismissal. There was little mitigation beyond previous good character and the guilty pleas to the second indictment, though those pleas came only after the failed attempt to derail the trial and in the face of overwhelming evidence. The court noted that a pre-appeal report showed Mr Asan continued to deny commission of the offences and showed no acceptance of responsibility, displaying what the report described as possible self-delusion and an air of arrogance.

Turning to the offences of perverting the course of public justice, the court emphasised that custodial sentences should be imposed in all but the most exceptional cases and should normally be consecutive to any sentence for the substantive offence, citing Attorney General’s Reference No 1 of 1990 and Attorney General’s Reference No 17 of 2008. The seriousness of the substantive offence, the nature and degree of persistence of the deception, and the effect on the course of justice were material. The court referred to R v Radcliffe [2016] 1 Cr App R(S) 665 for the principle that cases of perverting the course of justice almost inevitably call for custodial sentences as such offending strikes at the heart of the administration of justice, though the necessary length will depend on the circumstances. The court held that the perverting offences in the present case were serious ones of their kind, having regard to the seriousness of the underlying conduct, the sophisticated and persistent attempts at deception, the involvement of two innocent colleagues, and the fact the conduct persisted after arrest and whilst on bail.

The court noted that once section 36 of the Criminal Justice Act 1988 was triggered by the perverting counts, the rest of the sentence was at large as a matter of law, referring to section 36(3) itself and to R v Clews decided that week. The court quashed the sentences for harassment, perverting the course of public justice, and criminal damage. Taking account of totality, such mitigation as was available, the hours of unpaid work completed, and very limited credit for the guilty pleas to the second indictment, together with the fact that a suspended sentence was being activated, the court substituted an overall sentence of four years and nine months’ imprisonment. On indictment 1 the sentence of one month concurrent for possessing a prohibited weapon remained in place. On indictment 2 the court imposed three months concurrent for criminal damage, thirty months for harassment, eighteen months consecutive for the first perverting count, and eighteen months concurrent for the second perverting count. On indictment 3 the court imposed nine months consecutive for the further harassment offence, taking account of the features of perverting the course of justice which aggravated that offence. The restraining order remained in place. The court ordered Mr Asan to surrender to custody at Keyham Lane Police Station by 4.00 pm that day.

In short, a twelve-month suspended sentence for a prolonged and sophisticated campaign of harassment and multiple attempts to pervert the course of justice was unduly lenient and replaced with an immediate sentence of four years and nine months’ imprisonment.

Mercer [2009] EWCA Crim 2100
R v Tunney [2017] 1 Cr App R(S) 91
R v Radcliffe [2016] 1 Cr App R(S) 665
Dean Smith and Others [2008] EWCA Crim 1342, [2009] 1 Cr App R 36