Murphy [2019] EWCA Crim 438
- Summary
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Regina v Darren Joseph Murphy [2019] EWCA Crim 438 concerned an appeal against a sentence of three years’ imprisonment imposed at Chester Crown Court by Judge Dutton for blackmail, to which the appellant had pleaded guilty at the plea and trial preparation hearing.
Mr Murphy had blackmailed Mr John Ibbotson, an electrician who operated a business called Ultimate Electronics. In July the previous year, Mr Ibbotson attended a house in Crewe with Mr David Freeman, who was managing the property for the landlord, to check the electrical installations. They found the locks had been changed and, after forcing entry, discovered a cannabis grow upstairs. The police were called. Mr Ibbotson and Mr Freeman went to the police station to report the discovery and then returned to the house with an officer. The cannabis grow was removed and Mr Ibbotson restored the electrical supply before new locks were fitted.
About four weeks later Mr Ibbotson received an evening telephone call on his mobile from a withheld number. The caller, who was Mr Murphy although Mr Ibbotson did not know this, demanded the return of his “fucking gear”. Mr Ibbotson initially thought the caller was referring to missing materials or tools. The caller then said he had seen Mr Ibbotson take it and had noticed him from a black Range Rover on Wistaston Road. The caller added “I know where you fucking live”, gave an address which was not in fact Mr Ibbotson’s address, and demanded the return of his grow gear or his money within 24 hours. He threatened “Otherwise I’m going to come and chop you and your wife up.” Mr Ibbotson recalled having seen a black Range Rover parked near the house when he and Mr Freeman had attended, with a man inside. He had seen the same man at the police station help desk and later saw the car being driven past the house slowly.
Mr Ibbotson was frightened by the call. The caller had known his name, his business name, and that he was married. Although the address given was wrong, the caller had his mobile number, which Mr Ibbotson found alarming. He contacted his brother-in-law who had the business van to check he was safe, and also contacted Mr Freeman, who had not received a similar call. Mr Ibbotson suggested his wife stay with her sister but she refused. They locked their home, went upstairs to the bedroom, armed themselves and placed a chair against the bedroom door handle. Neither slept that night. The following day they reported the call to the police. Mr Murphy was arrested the day after that.
The incident had a real impact on Mr Ibbotson and his wife. Their lives were significantly affected. Mr Ibbotson took time off work and upgraded his home security. He panicked when his phone rang and two months later was still speaking of “living with constant fear in the back of our minds.” Judge Dutton described this as amounting to “serious psychological harm”, a characterisation which the Court of Appeal noted was debated but did not engage with, accepting that the very significant impact of Mr Murphy’s conduct was undeniable.
Mr Murphy was 37 years old with many previous convictions, mostly for public order offences and none of real gravity, though he had received seven months’ imprisonment in 2006 for two offences of assault. He had two previous convictions for possessing cannabis and, a couple of months before the present offence, had been given a two-year community order for producing cannabis. He was therefore in breach of that order at the time of this offence. He faced no charges relating to the cannabis grow discovered by Mr Ibbotson and Mr Freeman.
The mitigation advanced by Mr Morris on Mr Murphy’s behalf included his guilty plea, the fact that the blackmail consisted of a single phone call, the absence of face to face confrontation with Mr Ibbotson, the fact that he did not know where Mr Ibbotson lived and so could not carry out his threats (though Mr Ibbotson was not to know this), and the fact that he was the main carer for his wheelchair-bound father who had suffered a stroke. Mr Morris also told the judge that Mr Murphy had not been involved in setting up the cannabis farm but had simply provided some of the equipment for it. Mr Morris did not say Mr Murphy did not know what the equipment was for, but said he had not been paid in full. The person to whom he had provided the equipment told him he would not be paid until it was returned. That person had informed Mr Murphy about Mr Ibbotson and given him Mr Ibbotson’s mobile number. Mr Morris also told the judge that Mr Murphy had not been in the black Range Rover; otherwise he would have known the police had the equipment. It followed that Mr Murphy believed Mr Ibbotson had it, which explained why he targeted him. Judge Dutton took four years’ imprisonment as his starting point, which he reduced to three years to reflect the guilty plea at the plea and trial preparation hearing.
The sole ground of appeal pursued before the Court of Appeal, the others having been withdrawn, was that the starting point of four years was too long. Sir Brian Leveson, giving the judgment of the court, noted there was no sentencing guideline for blackmail, almost certainly because cases were necessarily very fact specific, though the offence had been described as ugly, vicious and nasty. Authorities cited by Mr Ray for the Crown showed that the typical case of blackmail fell somewhere between robbery and simple theft in terms of seriousness. Relevant factors included the nature of the demand, the victim’s ability to meet that demand, the nature of the threat to the victim should the demand not be met, the anguish and fear which the victim would usually experience, and the extent to which that anguish and fear was intended.
The court observed that attempts had occasionally been made to cross-check sentences in blackmail cases with sentences passed for different offences of apparently similar gravity. In R v Ferguson and Newby [2017] EWCA Crim 356 the court had looked at the sentencing guidelines for aggravated burglary by way of such a cross-check. Mr Morris said the judge had been referred to this case, but it did not appear in prosecuting counsel’s opening nor did the judge refer to it, and since the facts were so different the court put it to one side.
The court considered that a sentencing guideline with greater relevance was the guideline on making threats to kill included in the Definitive Guideline on Intimidatory Offences issued by the Sentencing Council. After all, Mr Murphy had threatened to chop Mr Ibbotson and his wife up if his demand was not met. The court held, however, that the guideline was not a particularly persuasive analogy, first because the maximum sentence for making threats to kill was ten years’ imprisonment whereas the maximum for blackmail was fourteen years, and secondly because blackmail involved much more than simply making threats. The gravamen of the offence was the making of an unwarranted demand accompanied by a threat of some kind. The court held it would be unwise for sentencing judges to place too much weight on this guideline when considering the offence of blackmail, even where the threat consisted of a threat to kill.
The court held that this was a particularly nasty case. It had not overlooked that the demand and accompanying threats were made in a single phone call, that they were not made face to face, and that not long afterwards Mr Ibbotson would have known that a man who had in effect confessed his guilt had been caught and was in custody. However, Mr Ibbotson was not to know whether the man had been acting alone or whether he had been part of a wider group of people who might wish to take reprisals on him for the part he played in the man’s arrest, and the effect on Mr Ibbotson and his wife was very considerable. Moreover, it was not just the fact that the threat was a threat to kill which made the case serious. The demand amounted to a demand to suppress crime, since Mr Murphy’s case was that he had not known about the police involvement and therefore had not realised the police knew about the cannabis either.
In short, the court concluded that the starting point of four years’ imprisonment was not too long in all the circumstances and dismissed the appeal.