Newsome [2019] EWCA Crim 639

R v Myron Newsome [2019] EWCA Crim 639 concerned an appeal against a total sentence of 35 months’ imprisonment imposed in the Crown Court at Leeds for offences of assault by beating, breach of a restraining order, and breach of both a suspended sentence and a community order. The Court of Appeal allowed the appeal and reduced the total sentence to 25 months’ imprisonment.

On 18 April 2018 Mr Newsome, aged 28 at the time of sentence, pleaded guilty before the magistrates’ court to two offences of assault by beating and one offence of breach of a restraining order. He was committed for sentence to the Crown Court pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. On 9 May 2018 the Crown Court at Leeds sentenced him to three months’ imprisonment for the first assault, three months’ consecutive for the second assault, and seven months’ consecutive for breach of the restraining order, making a total of 13 months. The court also activated a suspended sentence of 19 months’ imprisonment imposed on 12 September 2017, ordering it to run consecutively. In addition, the court revoked a community order imposed on 2 February 2018 and re-sentenced Mr Newsome to three months’ imprisonment consecutive to the other terms. The total sentence was therefore 35 months’ imprisonment.

The offences committed on 21 February 2018 arose from Mr Newsome’s relationship with Mica Sykes, with whom he had a child and against whom there was a restraining order prohibiting any contact. Mr Newsome went to Ms Sykes’s home address in Huddersfield and knocked on the door. When she opened it he immediately punched her in the face, causing her to become dazed, and shouted accusations that she was in another relationship. He made his way into the house and Ms Sykes ran to a neighbour’s house for help. Mr Newsome chased after her and cornered her in the neighbour’s garden, where he hit her on her face and head. The neighbour, Mr Core, intervened and told Mr Newsome to calm down and leave Ms Sykes alone. Mr Newsome then turned on Mr Core and punched him in the face. He then inflicted further violence on Ms Sykes by punching her in the head and face before leaving and saying “Watch me take your kids”. Ms Sykes suffered a cut to her nose and cheek area and Mr Core had reddening and bruising to his face and forehead. A victim personal statement described Ms Sykes’s depression, fear, and her need to look over her shoulder when she went out. When arrested Mr Newsome denied the offences and exercised his right of silence in interview.

The 12 September 2017 suspended sentence had comprised 19 months’ imprisonment suspended for 18 months with a rehabilitation activity programme and 150 hours’ unpaid work. It had been imposed for assault occasioning actual bodily harm, possession of an offensive weapon, and possession of a Class B controlled drug, all concurrent with each other but consecutive to 12 months for dangerous driving. Those offences had occurred on 20 February 2016, when Mr Newsome and another male chased a group of 13 to 14 year old children who had been knocking on doors. Mr Newsome was armed with a piece of wood, a chair or table leg, and grabbed one of the girls, held her by the throat, and hit her with the wood to her elbow and stomach area, demanding that she inform him of the names and addresses of the others. A small amount of cannabis was seized upon his arrest. Whilst on bail, on 3 April 2017, Mr Newsome refused to stop for the police and engaged in a lengthy chase during which he drove on the wrong side of the road, contravened road signs and red traffic lights, drove at excessive speeds in a residential area, and collided with other vehicles and a police vehicle.

The community order breached by the February 2018 offences had been imposed on 2 February 2018 for offences committed on 9 June 2017, during the operational period of the suspended sentence. On that occasion Mr Newsome had gone looking for Ms Sykes in a street in Huddersfield, repeatedly knocking on doors and shouting “Where’s Mica?” and “Tell me now, or I’ll knock you out”. He pushed a male occupant holding a two year old son into a wall, then went to a neighbouring house and kicked the front door while shouting “Mica” repeatedly. When the female occupant opened the door he pushed it on to her. He then picked up a child’s scooter and skateboard from the garden and smashed the living room windows, causing damage of some £900. He was found in possession of cannabis upon arrest and caused criminal damage to a police cell by throwing food against the wall. Mr Newsome was aged 28 at the date of sentence and had 14 previous convictions, including previous convictions for battery in 2013, 2014, 2016, and 2017, and for harassment and possession of an offensive weapon. A pre-sentence report assessed him as medium risk of general re-offending, high risk of harm to the public, and medium risk of harm to past and future intimate partners. A breach report confirmed that he had completed 85 hours of his 150 hours unpaid work requirement.

The sentencing judge observed that Mr Newsome had a significant record including over the previous three years a number of convictions in connection with his relationship with Ms Sykes. The judge stated that unless it would be unjust to do so the suspended sentence had to be activated and there was no realistic possibility of avoiding sending Mr Newsome to serve the full 19 months. The judge noted that Mr Newsome had committed further offences very shortly after being given a further chance on 2 February 2018. For the section 39 assaults the judge imposed three months on each, ordered consecutively as they were separate assaults. The judge treated the breach of the restraining order as a category 1 offence because significant psychological harm had been caused according to the victim personal statement, with culpability level B, and after credit for the guilty plea reduced the sentence to seven months’ imprisonment consecutive to the other terms. The community order was revoked and Mr Newsome was re-sentenced to three months’ imprisonment consecutive.

On appeal Mr Donoghue submitted that the sentence was manifestly excessive as insufficient regard was paid first to the 85 hours of unpaid work already completed under the suspended sentence order when deciding to activate the suspended term in full, and secondly to the issue of totality. The court was reminded of authorities establishing that when activating a suspended sentence it will normally be appropriate to reduce the custodial term to reflect compliance with an associated requirement, in particular an unpaid work requirement. Schedule 12 to the Criminal Justice Act 2003 provides at paragraph 8(2) that where the offender is convicted of a further offence during the operational period the court must make an order that the suspended sentence is to take effect with or without a reduction in the custodial period, unless it would be unjust to do so in all the circumstances, including the extent to which the offender has complied with the community requirements and the facts of the subsequent offence.

The Court of Appeal held that the learned judge should have made some reduction in the custodial term upon activation of the suspended sentence to reflect the fact that over half of the hours had been completed. The judge was right, however, to take the view that it was an aggravating feature that there had been repeated breaches of court orders. The court noted that the breach of the restraining order offence had been committed to the Crown Court pursuant to section 6 of the 2000 Act and thus the Crown Court’s powers were restricted to those of the magistrates’ court. The court also considered submissions in respect of the imposition of consecutive sentences and the principle of totality. The Definitive Guideline on Offences Taken into Consideration and Totality issued by the Sentencing Council states that a sentencing court should pass a total sentence which reflects all the offending behaviour but which also ensures that the overall sentence is just and proportionate in all the circumstances. The court noted that Mr Newsome frequently breached court orders, had a bad record, and had committed a number of offences upon Ms Sykes, all of which were aggravating factors.

Looking at the matter in the round, the Court of Appeal was persuaded that the total sentence was manifestly excessive. The court considered that the proper outcome would have been a reduction of the custodial period of the suspended sentence order from 19 months to 12 months. The court also reduced the sentence for the breach of the restraining order from seven months’ imprisonment to four months’ imprisonment. The court quashed the sentence of seven months imposed for breach of the restraining order and substituted a sentence of four months’ imprisonment. In respect of the activation of the suspended sentence of 19 months’ imprisonment the court activated 12 months, making all the sentences concurrent with each other but consecutive to the other sentences. The total sentence was therefore 25 months’ imprisonment. In short, the appeal against sentence was allowed to the extent indicated, reducing the total sentence from 35 months to 25 months’ imprisonment to reflect partial compliance with the suspended sentence order and to ensure totality.