Lian Harris [2019] EWCA Crim 1678

Regina v Lian Harris [2019] EWCA Crim 1678 concerned an appeal against sentence by leave of the single judge, which the Court of Appeal (Nicola Davies LJ, Lavender J and Nicklin J) dismissed.

The appellant had pleaded guilty on the day of trial, 17 December 2018, to one count of breach of a non-molestation order contrary to section 42A of the Family Law Act 1996. On 17 April 2019 she was sentenced in the Crown Court at Wolverhampton to 27 months’ imprisonment.

The appellant had entered into a surrogacy arrangement with a husband and wife. She became pregnant but during the pregnancy decided she no longer wished to hand over the baby once it was born. Significant hostility ensued between the parties during the pregnancy. Shortly after the appellant gave birth to a girl, the husband and wife commenced Family Court proceedings which proved protracted and acrimonious. In August 2015 custody of the child was granted to the husband and wife. The appellant was initially granted direct access but began to cause problems for the couple, contacting Social Services and making unfounded allegations that the child was being abused at home. As a result her access was restricted to supervised, then to indirect access.

The appellant was twice convicted of stalking, first in June 2016 and then in May 2017. She stalked first the judge hearing the case, then a CAFCASS guardian. She was sentenced to a suspended sixteen-week term of imprisonment for stalking the judge, but then to an immediate sixteen-week term for stalking the guardian when the suspended sentence was activated but varied to six weeks’ imprisonment, making a total sentence of 22 weeks’ imprisonment. She was released from custody on 27 July 2017.

Following her release the appellant posted on Facebook a statement that the wife had mental problems, namely schizophrenia and Munchausen-by-proxy. She also posted the wife’s home address. This led to the non-molestation order being made on 3 November 2017, which prohibited the appellant from making any postings to social network sites which contained any abusive or derogatory comment about the husband or the wife. Although the appellant later denied it in interview, she was aware of the terms of the order.

The appellant repeatedly breached the order between 19 November 2017 and 1 January 2018. In particular, she created a Facebook profile in the name of the child, with a photograph of the child and the wife, and a caption telling people that if they saw the couple with the child they should tell the child she had a real mummy and a family who loved her. In her Facebook postings the appellant described the wife as having psychopathic disorder, schizophrenia and Munchausen syndrome, and as being delusional. She alleged that the wife’s mental health problems meant the child was suffering emotional abuse. There was no factual basis for any of these allegations. The conduct understandably caused considerable distress to the wife, who said she was frightened to go out, exhausted, stressed and feeling broken. The stress aggravated her irritable bowel syndrome and she felt compelled to check Facebook almost daily because she feared there would be new pictures uploaded.

The sentencing judge had correctly placed the persistent breach which caused very serious distress in category 1A in the guidelines, with a starting point of two years’ imprisonment and a range of up to four years. The judge referred to the appellant’s previous convictions as aggravating factors. These were significant matters since they arose out of the same proceedings and involved persistent harassment. Another aggravating factor was that the appellant breached the non-molestation order within three weeks of its being made. The judge decided the appropriate sentence before discount for the guilty plea was 30 months’ custody, and gave a discount of ten per cent. No issue was taken with the level of discount.

There were originally three grounds of appeal. The first was that the judge had placed the offence into the wrong category. Mr D’Souza on the appellant’s behalf rightly did not pursue that ground. The court considered that the judge had placed the offence in the right category.

The second ground was that the judge ought to have made allowance for the appellant’s mental health difficulties and should have treated her as suffering from a mental disorder for the purposes of the sentencing guideline and reduced the sentence accordingly before applying the credit for the guilty plea. The appellant had told the psychiatrist who prepared a report that her childhood was marked by emotional abuse from her mother and sexual abuse from her stepfather. Against that background, a difficult pregnancy and then the proceedings following the birth of the child had been traumatic for the appellant. The appellant was diagnosed in 2017 with recurrent depressive disorder. A psychiatric report prepared for the sentencing hearing expressed the opinion that the appellant did not appear to have a personality disorder but did have some emotionally unstable and paranoid traits which were highly consistent with her childhood experiences. The judge did not go into these matters as fully as might have been desirable in her sentencing remarks. However, in all the circumstances, and balancing the aggravating and mitigating factors, the court did not consider that the appellant’s mental health required the judge to impose a lower sentence than that which was in fact imposed.

The third ground was that the sentence should have been suspended because the break in offending of almost eighteen months was sufficient for the court to step back from imposing a term of immediate imprisonment. The question of suspension did not and does not arise, given that the sentence was one of 27 months’ imprisonment. Moreover, the fact that eighteen months elapsed between the appellant stalking the guardian and her breach of the non-molestation order was of limited, if any, significance for three reasons. First, the appellant spent some of those eighteen months in prison. Secondly, towards the end of those eighteen months, and only shortly after her release from prison, she did the acts which led to the imposition of the non-molestation order. Thirdly, the breaches followed very shortly after the imposition of the non-molestation order.

In short, the appeal against sentence was dismissed, the sentence of 27 months’ imprisonment being upheld as neither manifestly excessive nor wrong in principle.