R v Emma Sushila Inkeri Patel

In applying the intimidatory offences Sentencing Guideline, whether persistent action has occurred over a prolonged period is a fact-sensitive question. A period of nearly three months can satisfy that description, depending on the nature, circumstances and persistence of the conduct. High planning or sophistication may also be established by research, multiple means of contact and steps to make contact anonymous.

When fixing a sentence within the applicable range, a court may take account of harm caused to relevant third parties. The sentence before credit for a guilty plea is the product of the overall evaluative exercise, including personal mitigation; it is not necessarily a starting point from which mitigation must separately be deducted.

The applicant pleaded guilty at Isleworth Crown Court to stalking involving serious harm or distress, contrary to section 4A of the Protection from Harassment Act 1997. Her conduct included sustained unwanted calls and messages to the victim, his family and others, use of multiple telephone numbers and SIM cards, and online research.

On 17 January 2020, the Crown Court imposed 11 months’ imprisonment, suspended for 24 months, after fixing a pre-plea sentence of 14 months and allowing 20 per cent credit for the guilty plea. The applicant sought permission to appeal sentence. She challenged the categorisation of culpability as category B and, alternatively, contended that the sentence was manifestly excessive notwithstanding substantial personal mitigation.

The application for permission to appeal sentence was refused. Neither ground was arguable with a realistic prospect of success.

1. The sentencing judge was entitled to categorise the offence as harm category 2 and culpability category B under the intimidatory offences Sentencing Guideline. The relevant culpability factors must be read alongside the descriptions in the other categories and evaluated in combination.

   A period of nearly three months is capable in principle of amounting to persistent action over a prolonged period. The question depends on the circumstances, the nature of the conduct and the nature of its persistence. The judge was also entitled to find a high degree of planning and sophistication, having regard to the research undertaken, the different means of contact, and the use of multiple phones and SIM cards for anonymous contact.

2. The pre-plea sentence of 14 months was within the applicable guideline range, whose upper end was 18 months. The judge was entitled to treat the harm as towards the higher end of category 2. Harm suffered by relevant third parties could properly inform the position within the sentencing range, even if the victim’s own harm was sufficient to establish category 2.

3. The sentencing judge had expressly considered the applicant’s good character, diminished career prospects, remorse, treatment, mental-health difficulties and progress in custody. The stated sentence that would have been imposed absent a guilty plea was the culmination of the overall evaluative exercise, including that mitigation. It was not a starting point which required a further separate reduction for mitigation before credit for the guilty plea.

The 20 per cent reduction for the guilty plea and the suspension of the sentence were unchallenged. The application was therefore refused.

• Court of Appeal (Criminal Division) Refused permission to appeal sentence: [2021] EWCA Crim 629.
• Isleworth Crown Court On 17 January 2020, following a guilty plea, imposed 11 months’ imprisonment suspended for 24 months for stalking involving serious harm or distress.