R v Nathan McMahon

In sentencing stalking, a court may move an offence into a more serious guideline category where aggravating features are sufficiently serious to justify that step. The absence of a victim personal statement must not be treated as showing an absence of harm. Very serious distress may be inferred from the circumstances. A restraining-order prohibition must be sufficiently precise and no wider than necessary. An imprecise and unnecessarily wide geographical prohibition should be quashed where there is no clear basis for a more defined restriction.

The applicant pleaded guilty to stalking involving serious alarm or distress and possession of a class C drug. The Crown Court at Truro initially imposed an unlawful extended sentence, which was rescinded. On resentencing, the applicant received 40 months’ imprisonment and a restraining order prohibiting contact with the complainant and entry into Penzance. He challenged the length of the custodial sentence, the sentencing procedure, and the geographical prohibition. The central issues were whether the sentence was excessive and whether the restraining order was sufficiently precise and justified.

Disposition. Leave to appeal was granted. The appeal was allowed only to the extent that the prohibition on entering Penzance was deleted from the restraining order. The 40-month custodial sentence and the remaining terms of the order were upheld.

1. The original extended sentence was unlawful. The earlier offence condition in section 280(1)(e) of the Sentencing Code was not met because none of the applicant’s previous convictions concerned an offence listed in Schedule 14. The four-year term condition was also not met.
2. The sentencing judge was entitled to place the stalking offence in the high-culpability category and to move it into the range for the next category because the aggravating features were sufficiently serious. The finding of very serious distress was open on the evidence. The absence of a victim personal statement could not be treated as indicating an absence of harm.
3. The judge had wrongly believed that resentencing had to take place within 56 days. Under Attorney General’s Reference (R v Nguyen), [2016] EWCA Crim 448, [2016] 2 Cr.App.R (S) 18, a judge who rescinds an unlawful sentence may adjourn resentencing beyond that period. The resulting failure to consider the psychiatric report and to give the applicant an opportunity to make representations did not make the custodial sentence unjust or disproportionate in the circumstances.
4. The restraining order was necessary and its duration was justified, but the prohibition on entering Penzance was unacceptably imprecise and unnecessarily wide. It was therefore quashed.
5. Imposing the necessary £190 surcharge after allowing the appeal to that limited extent did not offend section 11(3) of the Criminal Appeal Act 1968.

1. Court of Appeal (Criminal Division): Leave granted. The appeal was allowed to the limited extent of deleting the prohibition on entering Penzance and imposing the £190 surcharge. In all other respects, the sentence and restraining order remained as before.
2. Crown Court at Truro: An extended sentence imposed on 26 July 2022 was rescinded as unlawful. On 16 September 2022, the sentence was varied to 40 months’ imprisonment on count 1, with a concurrent one-month sentence on count 2.