Holliday & Anor, R. v

When sentencing for public nuisance constituted by nuisance telephone calls, the court may have regard to the statutory maxima and available protective orders under the analogous harassment offences in the Protection from Harassment Act 1997. The Crown Court is not confined by those maxima where the charge is public nuisance, but they are a material guide to proportionality.

Sentence must reflect the offender’s own conduct. A campaign’s surrounding intimidation may aggravate matters where the offender exploited it, but an offender must not be sentenced as an associate of those responsible for separate violence or threats. Comparisons with other sentencing authorities require close attention to the nature, scale and gravity of the calls and to mitigation, including a guilty plea and personal vulnerability.

The applicants pleaded guilty, on separate indictments, to causing a public nuisance by making large numbers of telephone calls connected with an animal-rights campaign. Mr Holliday made nuisance calls chiefly intended to jam switchboards. His calls were neither threatening nor connected with letter bombs. Mr Leboutillier made abusive and intimidatory calls, some including threats and references to the contemporary letter-bomb campaign, but he was not associated with the bomber.

At York Crown Court on 26 February 2004, Holliday received 18 months’ imprisonment and Leboutillier five years’ imprisonment. They made renewed applications for permission to appeal their sentences. The central issue was whether the respective terms properly reflected the gravity of their own conduct, comparable sentencing authorities and the relevant mitigation.

1. The renewed applications succeeded. Subject to any representations within seven days, the court substituted sentences of nine months’ imprisonment for Holliday and 30 months’ imprisonment for Leboutillier.

2. Holliday’s conduct was serious because it involved more than 1,000 nuisance calls and disruption of business switchboards. However, he had not made threats, referred to letter bombs, or taken part in the threatening mail campaign. His accepted personal vulnerability, mental-health difficulties, remorse, low risk of reoffending and earlier guilty plea materially reduced the proper sentence.

3. The court held that it was relevant, though not determinative, that equivalent conduct charged as harassment under section 2 of the Protection from Harassment Act 1997 would have been triable only summarily and subject to a six-month maximum. A public-nuisance prosecution did not restrict the Crown Court to that maximum, but it should have been borne well in mind. The court also commended, where appropriate, prosecution under that Act because section 5 permits a restraining order to protect a victim from further conduct.

4. Leboutillier’s calls were more serious. They were threatening and intimidatory, and took advantage of public fear caused by the separate letter-bomb campaign. Yet he was not a conspirator or associate of the bomber. There was no actual violence, criminal damage or further harassment of individual victims. His case was less grave than Schilling, and a starting point of about seven years was manifestly excessive. The five-year maximum under section 4 of the 1997 Act was also a relevant proportionality reference.

• Court of Appeal (Criminal Division): Renewed applications concerning the sentences were allowed in [2004] EWCA Crim 1847; reduced sentences were to be substituted subject to representations within seven days.
• Crown Court at York: On 26 February 2004, Judge Hoffman sentenced Holliday to 18 months’ imprisonment and Leboutillier to five years’ imprisonment after guilty pleas to causing a public nuisance.