William Hill [2019] EWCA Crim 975

William Hill [2019] EWCA Crim 975 was an appeal against sentence heard by Mr Justice Picken, the Recorder of Nottingham His Honour Judge Dickinson QC (sitting as a Judge of the Court of Appeal Criminal Division), who allowed the appeal in part on the single ground of totality. On 9 January 2019 in the Crown Court at Lewes, Mr Hill was sentenced following committal for sentence to an extended sentence of six years (comprising a five-year custodial term and a one-year extended licence period) for threats to kill contrary to section 16 of the Offences against the Person Act 1861, eight months’ imprisonment concurrent for arson, and four months’ imprisonment concurrent for each of four charges of common assault.

The offence of threats to kill had been committed for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. All other offences, including the arson, were committed under section 6 of that Act, limiting the Crown Court to the same sentencing powers as the magistrates’ court. For the summary-only common assault offences the maximum sentence individually and cumulatively was six months.

Mr Hill was aged 26. He had extensive previous convictions including arson in 2008 and 2010, wounding with intent in 2013 (for which he received 45 months’ imprisonment for stabbing), assault occasioning actual bodily harm in 2014, and assault occasioning actual bodily harm in 2016 upon KB, his former partner and the victim of the threats to kill, for which he received 26 weeks’ imprisonment. In September 2016 he had punched a stranger, fracturing the victim’s eye socket. In July 2017 he received 32 months’ imprisonment for inflicting grievous bodily harm. That same month KB terminated their relationship, but Mr Hill continued to contact her from prison in an abusive and controlling manner. In April 2018 he was sentenced to 18 weeks’ imprisonment for assault occasioning actual bodily harm committed in November 2017 while he was in custody.

The threats to kill were made on 17 January 2018 when Mr Hill telephoned KB from prison and stated it was his life’s mission to kill her, that he would track her down on release, slit the throat of her new partner and kill her. These threats terrified KB. On 8 May 2018 at HMP Lewes, Mr Hill assaulted three members of staff by punching and headbutting Mr Somanah in the healthcare unit, gouging the eye of Matthew Ward, and spitting into the face and mouth of Ross Buchanan-Stevens. He was taken to the segregation unit where he set fire to bedding in his cell. On 2 August 2018 in the healthcare unit he spat through a hatch into the eyes of Sam Slater and threatened to snap his neck and kill his children.

An interim hospital order under section 38 of the Mental Health Act 1983 was made on 7 September 2018 and Mr Hill was admitted to Llanarth Court Hospital. The sentencing judge received reports from two consultant forensic psychiatrists, Dr Sanikop and Dr Jayawickrama. The reports indicated that Mr Hill had grown up in a violent household and began abusing alcohol and cannabis at 14. Long-term drug use led to psychotic symptoms including auditory hallucinations. He had a long history of involvement with mental health services including compulsory and voluntary hospital admissions. Both psychiatrists diagnosed emotionally unstable personality disorder of the borderline type and dissocial personality disorder, but not paranoid schizophrenia or schizoaffective disorder. No hospital order was recommended. Treatment was suggested principally by way of psychological counselling, but Mr Hill was not engaging. While at the hospital he assaulted another patient and members of medical staff and made threats to and intimidated others. The interim hospital order was revoked and he returned to prison. Dr Sanikop concluded there was a significant risk of violence to others and that if Mr Hill were to offend again the victims would be likely to sustain serious harm, physical as well as psychological.

For the threats to kill, applying the definitive guideline, the judge concluded the case fell within higher culpability category A because of the history of violence towards KB and Category 1 due to the very serious distress caused to KB. Category 1A has a starting point of four years with a range of two to seven years. The judge moved up from the starting point to six years after trial, having considered the particular nature of the threats made from prison and the statutory aggravating factor of previous convictions. The single judge refused leave to appeal this adjustment and Miss Dardashti did not renew the application. Full credit for plea reduced the sentence to four years. For the arson the judge imposed eight months’ imprisonment concurrent. For the four assaults the judge imposed four months’ imprisonment concurrent with full credit for plea.

The Court of Appeal held that the sentence of eight months for arson was unlawful because the maximum sentence available to the Crown Court on committal under section 6 was six months, less one-third credit for plea. No complaint was made about the four-month concurrent sentences for the assaults. The judge was entitled in principle to impose consecutive sentences for the arson and assaults. Standing back, the court was not persuaded that the overall sentence was inappropriately long or that a reduction was called for on the ground of totality.

As to the extended determinate sentence, threats to kill is a specified violent offence and the judge concluded there was a significant risk of serious harm occasioned by the commission of further specified offences within the meaning of section 226A of the Criminal Justice Act 2003. No challenge was made to that decision. The judge had power to pass an extended determinate sentence under condition A in section 226A(2) because of the previous conviction for wounding with intent, and under condition B in section 226A(3) because the custodial term was at least four years.

The judge appeared not to appreciate that she had the discretion to pass normal determinate sentences for the arson and assaults consecutively to the extended determinate sentence for threats to kill, a well-established sentencing principle illustrated by Ulhaqdad [2017] EWCA Crim 1216. The judge appeared to consider herself bound by unspecified decisions of this Court to impose a single custodial term reflecting all criminality under the heading of the threats to kill with concurrent sentences for the other offences. However, the court emphasised that the judge was not required to sentence in accordance with the approach in Ulhaqdad. She was entitled if she thought it right to construct the sentence as she did, fixing the custodial element of the extended sentence to reflect all offences.

Section 153(2) of the Criminal Justice Act 2003 provides that the custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it. Section 226A(6) specifically applies this provision to extended determinate sentences. This approach, reflecting all associated offending in the single custodial term, is encountered frequently in practice and is sometimes used in cases where no single offence would justify a term of four years but the offences as a whole do so, as illustrated by Pinnell; Joyce [2010] EWCA Crim 2848. The judge arrived at the custodial term of five years by taking four years for threats to kill, four months consecutive for the assaults, and eight months consecutive for arson. In principle there was nothing wrong with this approach. The effect was that Mr Hill would serve at least two-thirds of the custodial term including the periods attributable to the arson and the assaults.

Miss Dardashti properly conceded that the sentencing judge should not normally adapt the sentence to take account of the release provisions. The length of the sentence should not be increased to counter early release on licence. When extended sentences were first introduced some prisoners were entitled to be released at the one-half stage. The legislation was amended so that all prisoners serving an extended determinate sentence must serve at least two-thirds and may serve the full custodial term before release. Custodial terms were not reduced to accommodate this. In any event, on the facts of this case, no injustice arose from the amalgamation of the four-year term for threats to kill with the much shorter terms for the other offences, including arson which itself is a specified violent offence.

The court quashed the eight-month sentence for arson and substituted a sentence of four months’ imprisonment concurrent. This reinforced the court’s view that the total sentence was appropriate. The extended determinate sentence for threats to kill was varied from six years to five years eight months, comprising a custodial term of four years eight months and an extended licence of one year. All other sentences remained as before. In short, the appeal was allowed to the limited extent of correcting the unlawful sentence for arson and adjusting the extended sentence accordingly, but the overall approach to totality and the structure of the extended sentence was upheld.

Pinnell and Another [2010] EWCA Crim 2848, [2012] 1 WLR 17, [2011] 2 Cr App R (S) 30
Ulhaqdad [2017] EWCA Crim 1216; [2017] 2 Cr.App.R.(S.) 397