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R v David Murphy [2012] EWCA Crim 2273

  • Neutral Citation Number: [2012] EWCA Crim 2273

    No: 201106401/D4

    IN THE COURT OF APPEAL

    CRIMINAL DIVISION

    Royal Courts of Justice

    Strand

    London, WC2A 2LL

    Wednesday, 3 October 2012

    B e f o r e:

    LORD JUSTICE AIKENS

    MR JUSTICE HOLROYDE

    HIS HONOUR JUDGE ROOK QC

    (Sitting as a Judge of the Court of Appeal Criminal Division)

    R E G I N A

    v

    DAVID MURPHY

    Computer Aided Transcript of the Stenograph Notes of

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    Mr T Bubb appeared on behalf of the Appellant

    Mr S Brown appeared on behalf of the Crown

    Judgment

    As Approved by the Court

    Crown copyright(c)

    1. MR JUSTICE HOLROYDE: This is an appeal by leave of the single judge against sentences totalling four years' imprisonment imposed by Mr Recorder Kershaw in the Crown Court at Leeds on 20 October 2011.

    2. The appellant was formerly in a relationship with Miss Tracy Ward. She ended the relationship around Christmas 2010. The appellant took that badly. Miss Ward complained that he thereafter harassed her and threatened her. An incident on 17 February 2011 was reported to the police. Then, on 24 February 2011, Miss Ward was granted a non-molestation order by a county court, which prohibited the appellant from communicating with her, harassing her or damaging her property. The appellant was made aware of that order on the following day.

    3. Two days later, on 27 February 2011, the appellant breached the order in a serious way. The events of that day gave rise to an indictment containing four counts: count 1, breach of the non-molestation order by communicating with Miss Ward; count 2, breach of the non-molestation order by harassing Miss Ward and damaging her property; count 3, dangerous driving; count 4, common assault.

    4. These counts all related to the same course of conduct. As Miss Ward was driving home from work in her Citroen car she became aware that the appellant was following her in his Peugeot car. He did so over a period of about 20 to 30 minutes. During that time he deliberately collided with her car, ramming it from behind and, as she saw it, trying to run her off the road. Miss Ward was thrown around inside her car by the impact and sustained injury as a result. In a statement made more than five months later she complained that the ramming had not only resulted in damage to her teeth, but had also caused continuing problems with her shoulder, her back and her knee. She also reported that she continued to feel anxious and depressed, had difficulty sleeping and felt that she had lost her freedom and her social life. She added that she felt worried all the time and was seeing a counsellor.

    5. The appellant pleaded guilty to count 1. He pleaded not guilty to the other counts on the indictment but was convicted of all offences after a trial. In the course of his evidence at trial he had given a very different account of the events which the jury must have disbelieved.

    6. The appellant was born on 1 September 1979 and so is now 33 years old. He has no previous convictions.

    7. Passing sentence the learned Recorder said:

    "You communicated with Tracy Ward, not the other way round. Your claim that she called you and you responded because you were fearful that she would harm herself has been rejected. Thereafter you drove into her car, causing damage, and you pursued her around the streets of Pontefract, in breach of the non-molestation order. It was only two days old. You knew full well that you should leave her alone, and I judge that you set out that day with a view to harassing her. The telephone evidence is quite clear. Combined with your own evidence, it shows that shortly after you woke up you began a deliberate course of harassment."

    8. The Recorder also spoke in his sentencing remarks of the appellant having shown a controlling nature and having acted with deliberate cruelty towards Miss Ward.

    9. The Recorder imposed the following concurrent sentences of imprisonment: count 1, four years; count 2, four years; count 3, 18 months, together with an order that the appellant be disqualified from driving for six years and until he had passed the extended test; count 4, four months. The Recorder also made a restraining order.

    10. In his written and oral submissions to the court counsel, Mr Bubb, rightly focuses on behalf of the appellant on the totality of that sentence. He acknowledges that, consistently with the guidance given in the Definitive Guideline for Breach of a Protective Order issued by the Sentencing Guidelines Council, the Recorder had to have regard both to the substantive offences and to the breaches of the order, and to pass a sentence commensurate with the totality of that offending. Nonetheless, Mr Bubb submits the total sentence of four years is manifestly excessive in length. He makes the point that all the offences arose out of the same incident, albeit he concedes one which was protracted over some 20 to 30 minutes. He submits that the damage to Miss Ward's car was consistent with a single collision rather than the repeated ramming which she alleged. He notes that Miss Ward had little visible injury and that there was no medical evidence to support her subjective complaints as to her continuing problems.

    11. In addition Mr Bubb emphasises, in our judgment rightly, that the maximum sentence for any one breach of a protective order of this nature is five years' imprisonment. Bearing in mind the variety of cases of breaches of protective orders which come before the courts, Mr Bubb's simple submission is that an aggregate term of four years in this case takes the total sentence too close to that statutory maximum.

    12. No criticism is suggested in respect of the restraining order made by the Recorder. The grounds of appeal did not specifically challenge the length of the disqualification from driving.

    13. Like the Recorder, this court views these as serious offences, committed in deliberate disobedience to an order of the county court. We do not think it necessary to engage in a detailed consideration of the evidence as to the extent of damage to the two vehicles involved. The jury must have accepted Miss Ward's evidence that the appellant deliberately rammed her car at least once; and Mr Bubb acknowledges that the expert evidence showed not only crumpling of the body work on the rear off-side of the Citroen, but also lesser damage to the off-side and front wing of that car, indicating that the appellant must have gouged along Miss Ward's vehicle and then cut across in front of it. The use of his car as a weapon in that way by the appellant called for a significant sentence of imprisonment. The harm which the appellant in fact caused to Miss Ward was serious, and the harm which he foreseeably might have caused to her or to other road users was more serious. The Recorder, having heard all the evidence at trial, was entitled to form the assessment he did of the appellant's character and the appellant's deliberate cruelty towards his former partner.

    14. We do, however, see the force of points made on the appellant's behalf by Mr Bubb. Without in any way diminishing the seriousness of the appellant's offending, we have concluded that the total term of four years' imprisonment was manifestly excessive in length. In our judgment the criminality of the appellant's conduct is properly reflected by concurrent terms of imprisonment totalling three years and by a shorter period of disqualification. We achieve that result in the following way. We quash the sentences of four years' imprisonment on counts 1 and 2. On count 1 we substitute a sentence of 12 months' imprisonment and on count 2 we substitute a concurrent sentence of three years' imprisonment. On count 3 we quash the order for disqualification for six years and substitute an order that the appellant be disqualified from driving for four years and until he passes an extended driving test. In all other respects, including the restraining order, the sentences and orders made below remain unaltered. To that extent this appeal succeeds and is allowed.


Judgment, published: 19/11/2012

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Published: 19/11/2012

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