Kaddu, R v

Neutral Citation Number: [2015] EWCA Crim 2531 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 201501403 A6 Royal Courts of Justice Strand London, WC2 Wednesday 15 July 2015 B E F O R E: LADY JUSTICE MACUR DBE MR JUSTICE HOLROYDE HIS HONOUR JUDGE BIDDER QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ARAFAT KADDU - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR PATRICK DENNIS appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE HOLROYDE: This is an appeal against sentence by leave of the single judge. The appellant was sentenced to three years seven months' imprisonment and made subject to a restraining order by Mr Recorder Marshall, sitting in the Crown Court at Wood Green, on 5 March 2015. The appellant had pleaded guilty to an offence of assault occasioning actual bodily harm. He had done so at an extremely late stage. His trial had commenced the previous day. It had then become necessary to discharge that jury on the second morning of the trial. The case was then transferred to another court room, and at that point the appellant entered his guilty plea. The victim of the offence, whom we do not think it necessary to name in this judgment and to whom we shall refer as "the complainant", was the applicant's former partner. The couple had two children aged seven and two at the material time. They had remained with their mother when the couple separated. On 5 September 2014 the complainant returned to her home, a ground-floor flat, to find worrying signs that someone had entered it in her absence. She checked around the flat and then carried on as normal. During the evening she exchanged text messages with the appellant in which they argued about their children. At about midnight the complainant retired to bed, wearing a T-shirt, bra and knickers. The younger child was sleeping in her bed and the older child was asleep in a separate bedroom. As the complainant was dozing off she suffered the terrifying experience of being woken by the appellant holding a knife to her throat. He made her leave the bedroom and go to the living room, keeping the knife to her throat throughout. He threatened to kill her if she did not go with him. He then held her in a headlock and dragged her into the communal hallway. There, he proceeded to cut away her clothing with the knife, garment by garment, until she was left completely naked. In the course of doing this, he caught her right index finger with the knife, inflicting a cut. In addition, his manhandling of the complainant resulted in a bruise to her right eye, bruises and grazing to her left wrist and left forearm, a sore neck and a sore left leg. The appellant then told the complainant to go back into the flat. She refused, fearing that he would there kill her. He opened the door of the flat and threw the knife inside. She quickly went into the flat and grabbed hold of the knife to protect herself but the appellant grabbed it off her. He told her to sit down though he did allow her to put on a dressing gown. The appellant was then disturbed by seeing the lights of an arriving police car outside. He told the complainant to go to the bathroom where he made her wash off the blood that was flowing from the cut he had inflicted. When the police car had left the area the appellant went back out into the hallway, saying that he had dropped some money. The complainant took that opportunity to lock the door behind him and call the police. The appellant then appeared outside one of her windows. She fled to a neighbouring flat, clearly frightened for herself and for her children. A later search of the flat revealed evidence that the appellant must have broken into it at some point before the complainant had returned home that evening. He must have lain concealed for two hours or more before carrying out his attack. It followed that he must have been hiding in the flat whilst exchanging text messages with the complainant. When interviewed by the police, the appellant denied the offence, saying the complainant had invited him into the flat but had then argued with him and cut her own clothes in order to get him into trouble. It was not until an extremely late stage in the proceedings that he pleaded guilty. Until he did so, of course, the complainant must have been expecting that she would have to re-live the ordeal by describing it from the witness box. It will be apparent from our brief summary of the facts that this was a very frightening and, frankly, sinister attack on the woman who is the mother of the appellant's children. Following the appellant's guilty plea, the complainant was called to give oral evidence as to the impact of the offence upon her. She said that since the attack some six months earlier she had been anxious and unable to sleep. She suffered episodes of breathlessness which she ascribed to panic attacks. She had felt unable to remain in the flat and so was living with her mother whilst awaiting re-housing for herself and her young children. She had consulted her doctor and had been referred to a therapist. She told the Recorder that she expected to get over the incident in time because she regards herself as a strong character. She felt that she was only about half-way through the process of recovery. The appellant is now 31 years old. He has been convicted in the past of thirteen other offences. Worryingly, these included robbery and two offences of having a firearm with intent to commit an indictable offence for which he was sentenced in 2003 to six years' detention in a young offender institution. He had been convicted of possession with intent to supply (of heroin and crack cocaine) in 2006 for which he had been sentenced to two years' custody. He had further been convicted of possession with intent to supply heroin and an offence of common assault in 2008 for which he had been imprisoned for a total of four years. In addition, there were two formal cautions recorded against the appellant, one of which was for possession of a bladed article in a public place. In his sentencing remarks the Recorder addressed the relevant sentencing guidelines in some detail. He concluded that there was greater harm for three reasons. First, there was considerable psychological harm and even more harm would have been caused if the assault had continued as the appellant had clearly intended that it should. In his judgment the overall injury, both actual and intended, was therefore, in the words of the sentencing guideline, serious in the context of the offence. Secondly, the complainant was particularly vulnerable because of her personal circumstances, being a young woman concerned for the safety of her children who was first attacked in her home and then stripped naked in a public place. Thirdly, it was a sustained attack, involving, as the Recorder put it, "an exercise of continual control and domination over a period of time and in different locations, starting in her bedroom". Moving through the guideline, the Recorder found at least three of the features therein specifically listed as indicating higher culpability, namely the obvious significant pre-meditation, the use of a weapon and the intention to cause more harm than was in fact inflicted. For those reasons the Recorder concluded that the offence should be regarded as falling into category 1 of the guideline. He went on to note a number of other serious aggravating factors: the location and timing of the offence; the presence of the children albeit that they fortunately remained asleep; the gratuitous degradation of the victim; the lasting effect on the complainant, including causing her to leave her home; the appellant's previous convictions; and the fact that at the time of committing this offence he was on bail for another drugs offence. So far as mitigation was concerned, the Recorder noted that the appellant had been to a degree the carer for an uncle who had provided a letter and was at court if needed. The Recorder observed however that arrangements had necessarily been made for the care of that uncle during the substantial period of time whilst the appellant had been remanded in custody. In those circumstances the Recorder concluded that the starting point for sentence in this very serious case must be higher than the guideline starting point of 18 months’ imprisonment. He took as his starting point a sentence of four years' imprisonment. He allowed credit of ten per cent for the very late guilty plea and so passed a sentence of three years and seven months' imprisonment. The Recorder also made a restraining order under Section 5 of the Protection from Harassment Act 1997 to continue until further order. This prohibited the appellant from contacting the complainant directly or indirectly "save for contact with respect to children by a solicitor or by the Citizens Advice Bureau, each of whom must be made aware of this order before contacting" the complainant. In his written submissions and in his very helpful and commendably succinct oral submissions this morning, counsel Mr Patrick Dennis has submitted that the prison sentence was manifestly excessive in length. He further submits that the restraining order should have been limited in duration and that the terms of that order were inappropriate because they are unworkable in practice. We have considered Mr Dennis's written and oral submissions with care. He challenges the Recorder's assessment of the case as falling within category 1 of the guidelines, whilst accepting that the Recorder could have started in category 2 but then moved up into category 1 because of the aggravating features. In particular, Mr Dennis argues that there was no evidence sufficient to support the finding that the complainant suffered injury which was serious in the context of the offence. He also challenges some of the aggravating factors identified by the Recorder, whilst realistically acknowledging that there were undoubtedly several aggravating features. We are unable to accept those submissions. Although of course expressed in non-medical terms and without the benefit of any professional medical opinion as to prognosis, the complainant's oral evidence showed significant anxiety continuing six months after the offence to a degree sufficient to necessitate a referral to therapy and to cause her to leave her home. The Recorder, in our view, was entitled to find that that was psychological injury which was serious in the context of the offence. In any event, he was in our judgment entitled to find that the complainant was particularly vulnerable because of her circumstances at the time of the attack and to find that it was a sustained attack. In the latter regard it would of course be wholly artificial to focus only on the reckless inflicting of a minor wound in the course of a very serious protracted assault. There is no doubt that there were many indicators of higher culpability. Thus, in our judgment, this offence started in category 1 and not, as Mr Dennis has argued, in category 2. Was it then so serious as to justify a starting point of four years' custody, given that the guideline starting point is 18 months, the guideline range is up to 3 years and the statutory maximum for this offence is five years? In our judgment it was. There were many and serious aggravating factors. The mitigation was very limited and could carry little weight in the context of such a serious crime. The Recorder was correct to note that the appellant's intention was to persist in his assault, which only ended because the complainant was able to take an opportunity to lock the door against him and to flee to a neighbour. As counsel acknowledges, appropriate credit was given for the guilty plea. Indeed, given the stage at which it was entered, the appellant would have had no complaint if rather less than ten per cent of credit had been afforded. Whilst it was undoubtedly a stiff sentence, the very serious circumstances of this offence, in our view, justified it. It cannot be said to be manifestly excessive. The appeal against the prison sentence accordingly fails. As to the restraining order, we are not persuaded by Mr Dennis that it was wrong in principle to order that it should be of indefinite duration in the sense of continuing until any further order. We do however see some force in his criticism that in its present terms the order is likely to prove unworkable. In particular, there is no fall-back position if some problem were to arise in relation to the arrangements made for the appellant, when at liberty, to have contact with his children. We therefore allow this appeal only to the following very limited extent. We make an order under Section 5 of the Protection from Harassment Act 1997, prohibiting the appellant Arafat Kaddu from the conduct described in the schedule of terms. This order will have effect until further order. The schedule of terms is as follows: (1) except as provided in paragraph 2, Arafat Kaddu must not contact (and here the order will give the name of the complainant) directly or indirectly, whether by himself or by any person acting on his behalf; (2) contact for the purpose of making arrangements in relation to the children of Arafat Kaddu and the complainant may be made through a solicitor, through the relevant social services department or otherwise in accordance with any order of the Family Court. We quash the existing restraining order, substitute for it a restraining order in those terms. To that limited extent, the appeal succeeds but in all other respects the sentence is as imposed by the Recorder.