Monthly Archives: April 2014

Two police officers jailed after sting operation

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We looked a couple of weeks ago at the case of DS Stephen Phillips and DC Jason Evans who pleaded guilty to theft after a ‘sting operation’. In brief, despite a lengthy service on both of their parts (including receiving commendations) suspicions were aroused as to their probity and so they were directed to search a house (in reality, one that had been wired for sound and video by the police). Here DS Phillips was seen taking £250 in cash, DC Evans two pens.

Both were getting custodial sentences, we opined. Although in the case of Mr Evans this did seem one that could be properly suspended.Well, on 28th April 2014 both were sentenced, and both got immediate custodial sentences of 22 and 12 weeks respectively.

The Judge noted that this was clearly a great breach of trust, which it undoubtedly was. The Theft Guidelines go out of the window in a case such as this and the length of the custodial sentence cannot really be complained about by either of them.

In relation to Mr Phillips, as Andrew commented on the last piece “cash is cash” and he cannot really complain about the sentence. I still feel that Mr Evans didn’t have to go to prison for this case. Theft by a police officer on duty is undoubtedly serious and “passes the custody threshold”, but for me the loss of his career is sufficient for theft of two pens and I would have thought that a suspended sentence would have been a proper punishment in his case.

There is no word yet as to whether there will be an appeal – we shall have a look out for it.

 

Adam Hulin case referred to the Attorney-General


Adam Hulin 5

We looked last week at the case of Adam Hulin and said that it might be a case where the Attorney-General might be asked to look at the sentence with a view to appealing it.

Well, on 28th April 2014 the Attorney-General tweeted this :

This does not mean that the sentence will definitely be appealed by the AG – he will get all the facts and judge whether it is a suitable case for an appeal. Even then, of course, it will be up to the Court of Appeal as to whether they feel the sentence is unduly lenient and, if so, whether it is appropriate to increase it.

There is a short deadline, so we would expect an announcement within a fortnight, and will of course come back and review it.

Max Clifford – Guilty verdicts in historic sex cases

max clifford

Introduction

On  28th April 2014 Max Clifford was convicted on 8 counts of indecent assault, not guilty of 2 and the jury could not decide on the last count (it is likely that there will not be a retrial on this).

The jury retired on 16th April. After five days of deliberation (including the Easter break) a majority direction was given on 23rd April. There were only 10 jurors and so a verdict had to be 10-0 or 9-1.

This post will be edited as more information becomes available.

Charges

Mr Clifford faced the following charges :

  • Count 1 – Indecent Assault relating to a girl aged 14 in 1966 – No verdict
  •  Count 2 – Indecent Assault relating to woman aged 18, in 1974/75- NOT GUILTY
  •  Count 3,4,5,6 – Indecent Assault relating to a girl, aged 15, in 1977/78 – GUILTY on all counts
  •  Count 7 – Indecent Assault relating to a woman, aged 19, in 1978 – NOT GUILTY
  •  Count 8 – Indecent Assault relating to a girl, aged 19, in 1981/82 – GUILTY
  •  Count 9,10 – Indecent Assault relating to a girl, aged 16 or 17, in 1980’s – GUILTY on both
  •  Count 11 – Indecent Assault relating to a woman, aged 18, in 1984/85 – GUILTY

This means that Mr Clifford has been convicted of 8 offences relating to four victims, all young women aged between 15 and 19.

We have some more details of the offending courtesy of Mark Williams-Thomas (and from the Daily Mail) :

Counts 3-6 – “when she was alone with Clifford, he told her to take her top and bra off because he needed to see her breasts. He later forced her to perform sex acts while he assaulted her.” It seems that Count 3 was getting the victim to masturbate him, Count 4 was digital penetration, Count 5 penile penetration of the victim’s mouth and Count 6 was Mr Clifford giving the victim oral sex.

Count 8 – the victim (during a pseudo-audition) “posed for the photos, but when Clifford asked her to open her legs, she refused. He then tried to grab and kiss her and pushed her down on a sofa, but she fought him off, kicking him in the groin,”

Counts 9-10 – During another ‘interview’ the victim was asked to strip which she did. Mr Clifford’s wife then rang and Mr Clifford began to masturbate whilst talking to her and then “tried to force the girl to perform a sex act on him.” It seems that Count 9 involved Mr Clifford touching the victim’s breast and Count 10 an attempt by Mr Clifford to force penile penetration of her mouth. This was unsuccessful, but he ejaculated over her.

Count 11 – “Clifford allegedly approached an 18-year-old in a nightclub, after asking if she wanted a film role. It was claimed he made a call and handed the phone to the dancer; the man on the other end said she could have a screen test if she confirmed whether Clifford was circumcised. Clifford then went to a toilet cubicle with her and forced her to masturbate him, prosecutors claim.”

Sentencing

Mr Clifford falls to be sentenced for the 8 offences of which he was convicted of. The maximum sentence on all these offences is 2 years (this is due to the ages of the victims and the age of the offending.

We have a factsheet on sentencing for historic offences. The Sexual Offences Guidelines will apply (notwithstanding these are historic offences), at least they will be the starting point.

Sentence will be passed on Friday. It is inevitably going to be a custodial sentence for Mr Clifford but predicting the length is difficult, but the fact that he has been released on bail until then does not mean that he will not be going to prison – it is very common nowadays. Mr Clifford will clearly attend.

What will he get? It’s worth saying straightaway that the sentence he would get if he committed these acts is far, far higher than he will get. This is not to do with his celebrity, or anything to do with the Judge’s assessment of the case, but purely because of the fact that the maximum legal sentence for each of these is two years.

If these offences were committed today, then they would be charged as follows:

It can be seen straight away that this offending is in a different league from that suggested by the name of the offence (Indecent Assault). This is because at the time of the offending rape was limited to penile penetration of the vagina. Even where the name of the offence is similar, sexual assault for example, the maximum sentence is 10 years rather than 2.

Count 5 is the most serious. Looking at the Guidelines (page 10) this would be a Category 2 case with higher culpability (Culpability A as it is put). This is because she was under 16, vulnerable, there was a breach of trust and threats issued to her. The starting point would therefore be 10 years with a range of 9-13 years.

Counts 4 and 10 would have a similar, if slightly lower, range. Count 4 would have a starting point of 8 years, with the remaining counts being significantly lower (but all but possibly Counts 8 and 9 would merit custody in isolation).

For this offending nowadays we would expect a sentence, after a trial, of 10-12 years. This is slightly lower than the starting points identified above (when taken together), but would fairly reflect the offending and other factors.

This makes the Judge’s task a very difficult one. He has to respect the fact that Parliament at the time took these offences a lot less seriously than they do now. He can pass consecutive sentences, but cannot give anywhere close to 10 years in prison here.  It seems to me wrong in principle to pass consecutive sentences on one victim taking the sentence over the maximum (or, at least, too much over the maximum).

To my mind, a fair sentence would be 2 years on Counts 3-6, 6 months on Count 8 and Count 9, 18 months on Count 10 and 12 months on Count 11. Making these consecutive between victims gives a sentence of 5 years. This is too long given the sentencing at the time. Stuart Hall got 30 months for less serious offending (but, as we noted, this decision was far from satisfactory), but I would imagine that the ‘best’ the Judge can properly do is 3½ years. This can be achieved by making some sentences concurrent, or reducing some to allow for totality.

Whilst 3½ years is very low on the face of it, it is right at the top of what I think would be lawful (and if it wasn’t for some of the recent AG References, I would have thought 2-3 years would have been the most), given the law as it was in the 1970s and 1980s. One thing that I will safely predict is that whatever the sentence, there will be public outrage from some quarters and calls for an Attorney-General’s Reference.

 Further Reading

There is a General information on historic sex cases.

See here for the Stuart Hall AG Ref and the Graham Ovenden AG Ref where some of the sentencing issues are discussed.

How does this relate to the other cases?

By ‘other cases’ you mean Dave Lee Travis, Bill Roache, Nigel Evans, you know, celebrities (but presumably not Stuart Hall)?

Officially, nothing. As the Judge in the Max Clifford case said those are irrelevant. One might think that, if they were completely separate, there would be no need to mention that they weren’t connected. However, if the defence have raised the issue (as has featured in a number of celebrity historic sexual abuse trials) then the Judge may have felt he had to deal with it. Alternatively, even if the defence didn’t raise it, the Judge might have felt the issue needed dealing with as some members of the jury may need reminding that they are to try the case only on what they have heard in court and not any extraneous factors such as the ‘shadow’ of the Jimmy Savile abuse.

Rachel Stokes – care home manager jailed for theft

From The Guardian

                       From The Guardian

On 25th April 2014 Rachel Stokes, a 48 year care home manager was jailed for 8 months for stealing from her residents in order to fund her bingo habit. She had siphoned off money (typically £100-200 a time) from seven residents by withdrawing money from their accounts and giving them less than she recorded in the paperwork. The total amount that she took was about £1,000.

The Theft Guidelines would appear to apply to this case. It is theft in breach of trust, and can properly be described as a ‘high breach of trust’. This gives a starting point of 18 weeks and a range of a Community Order up to 12 months in prison.

Here, there was a plea of guilty at the earliest opportunity, and there should be full credit for that plea. On that basis, the sentence passed was right at the very top of the range.

Is it too high? I would imagine that most people would think that stealing from such vulnerable people is such a disgraceful breach of trust that the sentence is well deserved. Whilst you could argue that, given that Ms Stokes was of good character and will almost certainly not re-offend, a sentence of 6 or 4 months would probably do the trick, I would doubt that any appeal would be successful. In this case, although the sentence is a severe one, it is hard to say that is is manifestly excessive.

Adam Hulin escapes jail for oral rape – another AG Ref?

Adam Hulin 5

Introduction 

We were directed towards the case of Adam Hulin, a 19 year old man who received a 12 month Community Order for rape and assault by penetration on 24th April 2014, so we thought we would have a quick look.

The facts are a bit hazy. We know that this was in 2012 when Mr Hulin would probably have been 17 (we don’t know his date of birth however). There was one victim who would have been aged under 13, but we know no more than that.

There were originally three allegations – oral rape and assault by penetration, to which there was a guilty plea. There was then a trial for a further allegation of vaginal rape during which the jury was discharged from giving a verdict and there was a Newton hearing. A Newton hearing essentially a trial on a factual point. There is no jury and the decision is made by the judge. The defendant may give evidence but does not need to. The defendant It is not clear what triggered this, or what was actually happening.

We understand that there have already been calls for an AG Reference.

Comment

On the face of it, this seems a very low sentence. The adult guidelines will apply as Mr Hulin was aged over 18 at the time of sentence.

The guidelines for rape start at p27 and for assault by penetration at p33.

And at that point, we draw a blank as we have no idea what the facts of the case are … We can see that the lowest starting point is 8 years with a range of 6-11 years for rape (the law makes no distinction between sentencing for oral, anal or vaginal rape) and 4 years with a range of 2-6 years for assault by penetration.

One can see from that that the sentence passed is miles below the guidelines. Even taking the lowest point in the range and giving full credit for the plea of guilty, that would be a sentence of 4 years.

Conclusion

So, has the Judge got it wrong? Not necessarily. Sentencing is supposed to be an art, not a science. We have seen plenty of cases where Courts have gone outside of the guidelines (above and below) for good reasons, and that is something to be encouraged in the right sort of case.

Was this the right sort of case to pass a non-custodial sentence? We don’t know as we don’t know the facts. Let’s wait and see if there is an AG Ref.

Tracy Johnson – “agoraphobic” jailed for benefit fraud

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Introduction

Tracy Johnson was convicted in March 2014 of 12 counts of benefit fraud. On 23rd April, she was sentenced to 12 months in prison.

It seems that Ms Johnson was claiming (unspecified) benefits on the basis that she had agoraphobia and was effectively house bound. During this time (2008-2012) Ms Johnson was in fact living a”“champagne lifestyle”, which included travels to Argentina, New York and Madrid.” This was funded, in part, by a travel guiding business that she operated in Argentina and a book that she had written. She was convicted of falsely claiming £48,000 in benefits.

 Comment

There are Sentencing Guidelines for Benefit Fraud (page 25). It looks like Ms Johnson was actually claiming benefits legitimately originally, but failed to declare the changes in her circumstances. This makes the offence less serious, and it would appear to be in the 3rd row and 3rd column. This gives a starting point of 36 weeks for a fraud of £60,000 with a range of 12 weeks to 18 months.

Here, there is no credit for a plea of guilty and the Judge appears to have taken a pretty dim view of what was a pretty blatant fraud. This is therefore higher than could be expected, but not so much as to be appealable.

It seems that the money that Ms Johnson obtained was all spent, bar £600. The BBC reported that she would not have to pay back any of the money (as there was none left) save for the £600 she had already paid back. It seems as though no compensation order was made as she has no means by which to pay any money back.

Man fined for goldfish neknomination stunt

Taken from the BBC

Taken from the BBC

Gavin Hope, aged 22, pleaded to an Animal Welfare Act 2006 offence and was sentenced on 23 April 2014.

The law

The RSPCA prosecuted Hope for, presumably, under section 4 of the 2006 Act – that of causing unnecessary suffering to an animal. We presume it is under subsection

(2) A person commits an offence if:

(a) he is responsible for an animal,

(b) an act, or failure to act, of another person causes the animal to suffer,

(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d) the suffering is unnecessary.

The offence is a summary only offence, triable therefore only in the Magistrates’ Court. The maximum sentence is a £20,000 fine and/or 6 months’ imprisonment.

The facts

The BBC reported that the RSPCA Chief Inspector said:

“The video shows Mr Hope prepare a pint glass with lager, chilli, tequila, a fresh egg and fish food.

“He picks up another glass containing a small amount of water and the goldfish, which is swimming around, and shows it to the camera before drinking it down, and following it with the pint.

“A vet report advised that the stomach would be a completely unsuitable place for a goldfish and that the fish would have died in time, the cause of death being a mixture of suffocation and acid ph levels in the stomach, as well as the alcohol he drank.”

It was said that it was after the decision to flush the fish down the toilet that Hope decided to drink it as a part of the Neknomination craze and that the decision was impulsive.

Sentence

Hope was fined £300, ordered to pay a £30 victim surcharge and £431 in costs.

The starting point is to look at page 40 of the guidelines. As usual, it can fairly be said that the offence does not fit into any of the three categories.

Whilst it was ‘one impulsive act’ (a descriptor in category 1 – the lowest category), it was also an attempt to kill – in fact it did kill – the fish (a descriptor in category 3 – the highest category). The sentencing range is from a Band B fine to 26 weeks’ imprisonment.

A Band B fine is 100% of relevant weekly income (range, 75-125%). Relevant weekly income is calculated from information provided by the offender on a means form, which they are required by law to complete.

In the event, Hope was fined £300. There is no information about his income and therefore it is difficult to say whether the fine was in accordance with the guideline. It is possible to say however, that the decision to impose a Band B fine – if that is the decision of the court – seems fair, considering Hope’s guilty plea. This is because to impose a Band B fine, the court would have started significantly higher than that level before giving a reduction for his guilty plea.

On a minor issue, the victim surcharge – a point often missed or incorrectly calculated by the courts – was correctly imposed in this case. Where an offender is fined, the surcharge is 10% of the fine.