R v Donna Foster

An offender is sentenced for the offence of conviction, but the sentencing court may consider all relevant circumstances when assessing its seriousness. This includes the context and effect of a malicious communication, even where the offender was not party to associated violence. A 10 per cent guilty-plea reduction may be appropriate for a plea offered on the second day of trial. An appellate court should not interfere merely because it might give greater weight to mitigation. Where suspension has not been expressly addressed, the appellate court may assess the issue itself. Immediate custody may remain justified where appropriate punishment cannot properly be achieved otherwise.

The applicant pleaded guilty in the Crown Court at Manchester to sending an electronic communication with intent to cause distress, contrary to section 1(1) of the Malicious Communications Act 1988. She was sentenced to 13 months’ immediate custody. The plea was entered on the second day of trial and was to an offence not on the indictment.

She applied for leave to appeal, arguing that she had been sentenced for the associated shotgun attack, that insufficient weight had been given to her mitigation, that the guilty-plea credit was inadequate, and that the sentence should have been suspended. The central issues were whether the sentencing judge had relied on impermissible matters and whether immediate custody was justified.

The Court of Appeal refused leave to appeal against sentence. The 13-month immediate custodial sentence therefore remained in force.

1. Relevant circumstances. The sentencing judge was entitled to take account of all relevant circumstances when assessing the seriousness of the malicious communication. The messages conveyed that the recipient was going to die. Considering their seriousness and context did not amount to sentencing the applicant for the shotgun attack, in which she had not been proved to participate.
2. Guilty-plea credit. A 10 per cent reduction for a plea offered on the second day of trial was an approach the judge was entitled to take. The plea resolved the matter, and the approach was consistent with the applicable overarching guideline, although another judge might have adopted a different approach.
3. Mitigation. The applicant’s history of domestic violence and her substantial care for her daughter had been taken into account. The fact that another judge might have made a larger reduction did not establish an error of principle or make the sentence manifestly excessive.
4. Suspension. The relevant factors included risk or danger to the public, whether appropriate punishment could be achieved only by immediate custody, compliance with court orders, rehabilitation prospects, personal mitigation and harmful impact on others. There was no evidence that the applicant presented a risk, rehabilitation was realistic, and the effect on her daughter was recognised. Nevertheless, the mitigation was not strong enough to outweigh the seriousness of the communications.
5. Although the sentencing judge had not expressly addressed suspension, the appellate court could consider the issue itself and adopt the judge’s reasoning where appropriate. The judge was entitled to conclude that appropriate punishment could be achieved only by immediate custody.

• Court of Appeal (Criminal Division): The application for leave to appeal against sentence was referred to the Full Court and refused. The sentence remained 13 months’ immediate custody: [2025] EWCA Crim 1185.
• Crown Court at Manchester (Minshull Street): On 13 June 2025, HHJ Jason MacAdam sentenced the applicant to 13 months’ immediate custody after her guilty plea.