Roberts, R. v

Blackmail sentencing is fact-specific. In the absence of a definitive guideline, the court should assess the money obtained relative to the victim’s means, the psychological harm intended and caused by the menaces, and the duration and persistence of the demands.

For a primary carer, the effect of custody on dependent children requires an individual proportionality assessment. It does not justify a standard reduction, and its capacity to make custody disproportionate diminishes as the offence becomes graver.

On a sentence reference under section 36 of the Criminal Justice Act 1988, the court should also make a fact-sensitive allowance for the distress and anxiety of an offender whose unduly lenient sentence is reopened, particularly after release from custody.

The Solicitor General referred as unduly lenient a four-month immediate sentence imposed at Kingston-upon-Hull Crown Court on 6 September 2019. The offender had pleaded guilty to blackmail contrary to section 21(1) of the Theft Act 1968.

Over more than a year, she obtained £29,800 from a former sexual partner through fabricated claims of pregnancy, childbirth, illness, adoption and death of a child. She threatened disclosure to his family and partner, and later threatened a false allegation of rape. The victim lost his savings, incurred debt and suffered serious distress.

The central issues were the proper sentence, the effect of the offender’s mitigation and role as primary carer of young children, and the adjustment required because she had been released after serving the custodial part of the original sentence.

1. The court granted leave and allowed the reference. The four-month sentence was unduly lenient. The sentencing judge had adopted a starting point that was significantly too low and had effectively double-counted the mitigation arising from the offender’s childcare responsibilities.

2. Blackmail is grave and coercive offending. Its seriousness was increased by the loss of the victim’s entire savings, the sustained and elaborate deception, the psychological harm caused by the supposed child’s fate, the persistence of the demands, and the threat of a false rape allegation. In the absence of a definitive guideline, reported cases provided only fact-sensitive assistance. Applying the factors identified in R v Ford [2015] EWCA Crim 561, the appropriate starting point was about five years’ imprisonment. Mitigation reduced this to four years, and full credit for the guilty plea reduced it to two years and eight months.

3. The court applied the double-jeopardy guidance in Attorney General’s Reference Nos 14 and 15 of 2006 (R v French and Webster) [2006] EWCA Crim 1335. The offender bore no responsibility for the original sentence, had served its custodial part and had been released. Her genuine distress and anxiety justified a further 25 per cent reduction, producing a term of 24 months’ imprisonment.

4. Applying R v Petherick [2012] EWCA Crim 2214, the effect on dependent children required an individual assessment and no conventional reduction. The seriousness of the offence meant that appropriate punishment ordinarily required immediate custody. However, there was a realistic prospect of rehabilitation, strong personal mitigation, and immediate custody would directly affect the offender’s children.

5. The court substituted a sentence of 24 months’ imprisonment, suspended for two years, with a Rehabilitation Activity Requirement of up to 20 days. The outcome turned on highly unusual facts and was not to be treated as general encouragement for blackmail offenders.

• Court of Appeal (Criminal Division). On a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the sentence unduly lenient, and substituted a 24-month suspended sentence with a Rehabilitation Activity Requirement.

• Crown Court at Kingston-upon-Hull. On 6 September 2019, the offender was sentenced to four months’ immediate imprisonment following her guilty plea to blackmail.