Lina Tantash [2019] EWCA Crim 1180

Lina Tantash [2019] EWCA Crim 1180 concerned a renewed application for leave to appeal against sentence for two offences of stalking involving serious alarm or distress, which the Court of Appeal (Lord Justice Irwin, Mr Justice Popplewell and His Honour Judge Field QC) refused.

Miss Tantash was convicted after summary trial in the Sussex Central Magistrates’ Court of two offences of stalking and committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 to Lewes Crown Court. On 22nd November 2018 Mr Recorder Lennard sentenced her to four years’ imprisonment on each offence, to run concurrently, for a total sentence of four years’ imprisonment. The single judge had refused leave to appeal.

The first offence related to a course of conduct against Mr Jarlath Rice, with whom the applicant had had a brief relationship after they met in Dublin in 2007. The applicant quickly became obsessive, waiting outside his workplace and attending events uninvited. Mr Rice ended the relationship within a very short period. In the summer of 2015 he moved from Ireland to Brighton to escape further contact, but continued to receive 40 to 50 emails per week from the applicant. When he blocked her email address, she created new ones and continued. Some emails threatened that she would find out where he lived and worked and that he would regret not being with her. Police warned her about her conduct. Following the warning the applicant called Mr Rice’s former workplace some 20 times a day from withheld numbers, asking to speak to him and requesting his contact details, and being abusive and threatening. She continued to contact his family in Ireland attempting to make contact with him. The applicant became possessed of the idea that a woman called Sarah Bolland was in a relationship with Mr Rice and commenced to harass and stalk her, constituting the second offence. Ms Bolland received numerous threatening calls, including one in which the applicant stated she would kill her. The applicant was abusive about Ms Bolland’s looks and threatened her regarding any relationship with Mr Rice. On 11th October 2017 the applicant set up a Just Eat account using the school email address where Mr Rice worked and sent more than £200 worth of food there, ordered in Ms Bolland’s name, disrupting the school’s open evening. On 9th February 2018 the applicant attended outside a venue in Brighton where Mr Rice was to attend a staff party. He noticed her standing opposite and had to evade her. Three days later he received an email from her saying she would kill herself if he did not speak to her. She was arrested later that day. In interview she initially denied leaving voicemails, organising the food delivery or communicating abusive messages, but subsequently answered no comment to all questions. There were approximately 20,000 emails sent to Mr Rice during the relevant years.

Both victims made victim personal statements. Mr Rice described how thousands of phone calls had made it a struggle to function personally and professionally, how the applicant had hacked into his voicemails and stalked others connected to him using private information gathered from messages, causing anguish and fear. He indicated that she had in the past physically assaulted him and his ex-partner. The aggressive and abusive dismantling of his life in Brighton over the past year had left him vulnerable, frightened and exhausted. He had moved address numerous times, recently to a cheap hotel because he feared she would target him anywhere. He suffered trouble with sleep, stress-related anxiety and deep depression, had contemplated suicide and did not have freedom to live a normal life. Ms Bolland indicated that there had been many anonymous phone calls to the schools in Brighton and Bexhill, that the applicant rang constantly and called very aggressively and assertively, insisting on being put through. On one occasion when Ms Bolland had a lapse in concentration and confirmed her identity, the applicant demanded to know if she was in a relationship with Mr Rice. When Ms Bolland deflected the question and hung up, the applicant called back immediately and was recorded saying Ms Bolland needed to answer the question, that she looked like a horse, was an ugly bitch, and must answer.

Before sentence the Recorder had a report from Dr Oluwole, a psychiatrist, who set out the applicant’s personal background. She had experienced anxiety symptoms, low mood and suicidal thoughts following the breakup of long-term relationships, but had never had a psychiatric hospital admission, engaged in deliberate self-harm or attempted suicide, although she had threatened suicide to control others. Dr Oluwole concluded that the applicant did not suffer from an enduring mental illness such as schizophrenia or a major mood disorder. Using the Autistic Spectrum Quotient questionnaire the applicant scored 37 out of 50, putting her in the range of having clinically significant autistic traits. Dr Oluwole concluded it was highly likely the applicant suffered from Asperger’s condition, a high-functioning neurodevelopmental disorder, and that her tendency to obsessively focus on an interest with some difficulty with perspective-taking may have contributed to her offending. There was also a pre-sentence report which assessed the applicant as presenting a medium risk of serious harm to Mr Rice and any females with whom he might be in a relationship or whom the applicant believed him to be in a relationship with, the nature of the risk being emotional and psychological harm through stalking. The applicant had no previous convictions.

In his sentencing remarks the Recorder described the facts and their impact. He indicated that within the relevant guidelines very serious distress and significant psychological harm had been caused to the victims and that Mr Rice had had to make considerable changes to his lifestyle to avoid contact. The Recorder concluded that culpability was very high, that the conduct was calculated to maximise fear and distress and that there was a high degree of planning and persistent action over a prolonged period. He categorised the offending as category 1A. The appropriate starting point for a category 1A offence was five years’ custody. He allowed some mitigation for the applicant’s good character and the surrounding circumstances, reducing the sentence to four years’ imprisonment. In written grounds of appeal it was submitted that the categorisation was inaccurate, but Miss O’Raghallaigh for the applicant sensibly accepted before the Court of Appeal that it was a proper categorisation, not only because of the nature of the offending but because there were two victims. The single judge had observed that the decision was entirely justified.

Two pieces of material which could not have been before the court below were placed before the Court of Appeal. The first was a report on the applicant’s progress in prison, which showed she had made progress and was an able, intelligent and high-functioning individual. The renewed application was principally based on the second document, a report from Dr Farnham. The court noted that leave was required to introduce this report as fresh evidence and that it should not be assumed that a second expert report would be accepted when a psychiatric report of this kind addressing these considerations was before the court below. However, the court agreed to consider the report de bene esse.

Before dealing with the report Miss O’Raghallaigh raised a preliminary point about the maximum penalty. She noted that the Criminal Appeal Office Summary wrongly stated the maximum penalty for the offending in relation to Ms Bolland as five years’ imprisonment when, since the offending post-dated the change in the maximum sentence in April 2017, it should have been ten years. She submitted that because the offending in relation to Mr Rice pre-dated April 2017, the maximum for that offence was five years’ imprisonment, which should affect the application of the starting point in the guidelines. The court rejected this argument as misconceived in two ways. First, relying on R v Hobbs and Others [2002] EWCA Crim 387, [2002] 2 Cr App R 22, the court held that if a course of offending straddles the relevant commencement date for an increased maximum sentence, the increased maximum applies. Even where the relevant sentence is confined to an earlier maximum, as in historic sex offences, the earlier, lower maximum penalty forms a constraint on the application of guidelines only to the extent that it prevents sentences exceeding the maximum and does not alter the approach to be taken from the guidelines. For those reasons the Recorder’s approach to the guidelines was untrammelled by any thought that the offending against Mr Rice altered the maximum and should amend his approach to the guidelines themselves.

Turning to Dr Farnham’s report, the court extracted the nub of his opinion. He stated that in his opinion the applicant was on the autistic spectrum and met the diagnostic criteria for autism spectrum disorder, which was mild but likely to affect her ability to manage relationships, particularly intimate relationships. He was largely reliant upon her self-report of her symptoms but considered that her stalking behaviour, inability to understand that the relationship with the victim was at an end, and the very concrete measure of asking the victim to sign a love contract were all in keeping with the diagnosis. He stated that her mild autism spectrum disorder was likely to affect her ability to manage relationships and deal with the emotional aftermath of the end of relationships. People with autism spectrum disorder tend to view relationships, particularly where they feel they have made a significant emotional or financial commitment, as more or less permanent and find it very difficult to accept that they can come to an end. The applicant was prone to very concrete thinking and likely to misinterpret the actions of the victim as possibly suggesting that the relationship was not over or would continue. She was likely to become preoccupied with her own feelings and emotional state and likely to find it difficult to appreciate the impact of her behaviour on the victims. Individuals with autism spectrum disorder are at risk of becoming deluded in stressful situations, but Dr Farnham suspected her campaign was more of an obsessional wish fulfilment where she believed she could continue the relationship by bombarding the victim. The court carefully read Dr Farnham’s report but considered that although the expression of opinion was fuller and more elegantly constructed than that in Dr Oluwole’s report, the conclusions were little different from those before the Recorder.

The heart of Miss O’Raghallaigh’s submissions was that the applicant had a serious mental disorder, that the offending should be treated differently, that this additional evidence should reduce her culpability somewhat, that not enough weight was given in the sentencing exercise when reducing from five years to four, and that there should have been a greater reduction. She placed emphasis upon the idea that there may have been delusional thinking on the part of the applicant. The court rejected these arguments. This was not a mental disorder of the kind intended to alter the conclusions under the guideline. The court noted that, as Miss O’Raghallaigh had frankly acknowledged, this kind of personality was commonplace in cases of this kind and must have been taken to be commonplace when the Sentencing Council concluded their definitive guidelines. This was not a mental disorder in the sense of a psychiatric disorder such as schizophrenia or other acute conditions which would, as an incremental matter, fall to reduce culpability. In any event both experts had indicated that the applicant was a very highly able person and that her condition was mild.

In short, the court found insufficient merit in the application to grant leave to appeal and accordingly refused the renewed application.

Hobbs and Others [2002] EWCA Crim 387