Sirtaj Singh Bhangal [2019] EWCA Crim 1342

In R v Sirtaj Singh Bhangal [2019] EWCA Crim 1342 the Court of Appeal dismissed an appeal against an eight-year extended sentence imposed for intimidation, breach of a restraining order and possession of an imitation firearm.

Mr Bhangal pleaded guilty at Isleworth Crown Court on 26 October 2018 to two offences of intimidation, breach of a restraining order and possession of an imitation firearm. The Recorder of Kingston, Mr Recorder Featherby QC, imposed an extended sentence of eight years comprising a six-year custodial term and a two-year extended licence period for the imitation firearm offence. Concurrent sentences of three years’ imprisonment were imposed for each of the intimidation offences and for the breach of the restraining order.

The appellant had become fixated on a woman with whom he had never been in any relationship. The two had communicated through social media, text messages and telephone calls since 2013 but had met in person only once, coincidentally on the Tube in May 2017. The first intimidation offence was committed whilst the appellant was on remand at Wormwood Scrubs Prison following conviction for harassing the same woman at Uxbridge Magistrates’ Court on 30 October 2017. On 15 November 2017, two weeks after that conviction, the woman received a telephone call from a withheld number lasting some 22 seconds in which she recognised the appellant’s voice. He said words to the effect of “Why shouldn’t I smash your face in for what you’ve done to me?” The woman was left fearful of what the appellant might do. The appellant was due to be sentenced the following day but the hearing was adjourned until 8 January 2018 and he was released on conditional bail. He ultimately received 26 weeks’ imprisonment for the harassment offence.

The second set of offences concerned an 80-page typed letter which the woman found left at her home address on 3 July 2018. The letter was extremely abusive and included threats to the woman and to her friends and family. It threatened that explosives would be thrown into her home, that acid would be thrown into her face and the faces of her family members and that she would be shot. The letter warned her against appearing in court in relation to the forthcoming case arising from the November 2017 telephone call and contained references to the movements of the woman and her family, claiming she was under surveillance. The letter was written as if from someone acting on behalf of the appellant but the woman suspected it was composed by him as its style was similar to previous correspondence. Accompanying the letter were pictures showing printed photographs from the woman’s social media accounts placed next to a handgun and rounds of ammunition, and some nine printed images of victims with acid burn injuries. The letter referred to a package containing a camcorder and further instructions allegedly left at the rear of her address. A bag was subsequently recovered by police from shrubbery behind her home containing clear latex gloves and images of acid, grenades, firearms, ammunition and swords. When arrested, officers found a SIM card for another camcorder with very similar footage to that in the recovered bag. The appellant was interviewed on 4 July 2018 and gave no comment to all questions.

The appellant was aged 35 at the time of sentence and had six convictions for seven offences spanning June 2014 to November 2017. His relevant convictions included pursuing a course of conduct amounting to harassment in 2014 and 2017, battery in 2015, stalking in 2015 and 2017, and harassment or breach of restraining orders in 2016. A pre-sentence report described the current offences as part of an established pattern of offending and concluded the appellant posed a very high risk of serious harm to the victim, the general public and to staff. The interview with the appellant had been curtailed owing to his obstructive and aggressive behaviour. The report noted that previous court orders and custodial sentences had not acted as a deterrent and that the appellant’s risk could not be safely managed in the community. A psychiatric report prepared by Dr Preeti Chhabra considered that the appellant satisfied the criteria for dissocial personality disorder, narcissistic personality disorder and obsessive compulsive disorder. The psychiatrist found significant indicators that without appropriate controls the appellant would be at high risk of future sexual or violent offending. Whilst the appellant satisfied the criteria for mental disorder given his personality disorders, it was unclear whether he would benefit from psychological treatment. The psychiatrist nonetheless recommended an interim hospital order for a period of assessment under medium security conditions.

The Recorder rejected that recommendation on the basis that there was no evidence the appellant suffered from a psychotic or psychopathic disorder. He described the appellant as getting “some sort of perverted thrill” out of frightening women. The Recorder found the appellant dangerous within the meaning of the Criminal Justice Act 2003, finding a significant risk of serious harm to the public through further offending, particularly in relation to his use of imitation firearms. The Recorder gave 20 per cent credit for the plea on the first indictment as it had been entered during a mention hearing after the plea and trial preparation hearing, and 25 per cent credit for the pleas on the second indictment given their timing. The Recorder indicated that in imposing concurrent sentences in respect of both indictments he would pay appropriate regard to the totality principle.

On appeal Mr Tatford, for the appellant, drew attention to R v Pinnell [2011] 2 Cr App R (S) 168, which established that when a person is sentenced for a specified offence together with one or more associated non-specified offences, none of which alone would justify the four-year custodial term necessary for an extended sentence, the seriousness of the aggregate offending must be considered. If a custodial term sufficient for an extended sentence is commensurate with aggregating the shortest terms appropriate for each offence, then an extended sentence can be passed on the specified offence along with concurrent terms for the non-specified offences. Mr Tatford submitted the Recorder appeared to have adopted an approach entailing taking a starting point close to the maximum for each offence before applying discount for plea and considering totality. He submitted the three-year sentences imposed for each of the intimidation offences were manifestly excessive. As to the imitation firearm offence, he contended that six years was excessive in view of authorities such as R v Carrington [2010] EWCA Crim 2372 and R v Elezai [2017] EWCA Crim 1713, the latter involving a gang member who fired an imitation gun at other gang members in the street and received a sentence reduced from five years to four years on appeal. As to the breach of protective order, Mr Tatford submitted this was a category 1A offence under the relevant Sentencing Council guideline with a starting point of two years and a range of one to four years. Whilst acknowledging that aggravating factors justified a sentence in excess of the starting point, he submitted that care should be taken given the upper limit in the guideline’s sentencing range of four years and that the presence of the imitation firearm was the only reason an extended sentence was a possibility. Mr Tatford submitted the offences on the second indictment could properly have been met by a total sentence of between three and four years, made consecutive to the sentence on the first indictment, so that taking account of totality an overall sentence of some four years would have been appropriate. He accepted that an extended sentence may also have been appropriate given the dangerousness assessment but submitted that a reduced custodial element would be apposite.

The Court of Appeal, composed of Lord Justice Holroyde, Mr Justice Picken and Sir David Foskett, considered that the Recorder adopted a somewhat unstructured approach, though Mr Tatford had not referred him to the Pinnell case at the sentencing hearing. The Recorder was plainly right to view the offending as serious and to conclude that the appellant satisfied the dangerousness provisions so that an extended sentence was in principle appropriate. The question was whether the six-year custodial term for the possession offence was manifestly excessive. The court held that it was not. The offending across both indictments plainly warranted a considerable term of imprisonment and an extended sentence. The first intimidation offence was serious in itself, involving a threatening call made from prison on an illicit phone to the complainant just before a sentencing hearing by somebody with very relevant previous convictions. The second intimidation offence involving the letter was sickening and represented a determined and sophisticated attempt, the result of much planning and preparation, to make the victim fear violence so serious that she would wish she had died. The possession of an imitation firearm offence was committed in the context of putting together the letter and was further evidence that the appellant intended to make the woman as scared as he could. All in all, this was disgraceful and highly disturbing offending which richly deserved a substantial sentence. Bearing in mind that all sentences were rightly made concurrent with the possession offence rightly treated as the lead offence, the court asked whether a six-year custodial term after credit for plea was too long as part of an extended sentence arrived at by taking an eight-year custodial term and giving two years’ credit for the guilty pleas. In the court’s view that was not the case. The six-year custodial term properly reflected the appellant’s overall criminality in circumstances where the offending entailed two separate occasions of serious offending. The court regarded it as inappropriate to make any change to the eight-year extended sentence and was not minded to alter the sentences for the other offences, though any alteration would not impact on the overall sentence in any event. The court added, for completeness, that the Recorder had wrongly told the appellant he would be considered for release after serving half his sentence when in the case of an extended sentence this occurs at the two-thirds stage of the custodial term.

In short, the Court of Appeal dismissed the appeal, holding that a six-year custodial term properly reflected the appellant’s overall criminality in respect of serious, sustained and sophisticated offending against a single victim and that an eight-year extended sentence was entirely justified.

R v Pinnell [2011] 2 Cr App R (S) 168
Charrington [2010] EWCA Crim 2372
Elezaj [2017] EWCA Crim 1713