No: 201704419 A2 
Neutral Citation Number: [2017] EWCA Crim 2496
IN THE COURT OF APPEAL
CRIMINAL DIVISION
   Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 17 November 2017 
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE GOSS

HER HONOUR JUDGE WALDEN‑SMITH
(Sitting as a Judge of the CACD) 
 
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

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R E G I N A 
v 
LISA SUDALE 

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Mr P Jarvis appeared on behalf of the Attorney General

Ms H Kubik appeared on behalf of the Offender
 
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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

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J U D G M E N T
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LORD JUSTICE SIMON:  
1.   The Attorney General seeks leave to refer a sentence passed on the offender, now aged 35, at the Crown Court at Warwick on 7 September 2017 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  We grant leave.  

2.   On 6 September, the offender had been convicted before Ms Recorder Carey and a jury on a single count of doing an act tending and intended to pervert the course of public justice contrary to common law.  It was on the following day that she was sentenced to a term of 24 months' imprisonment suspended for 24 months, with an unpaid work requirement of 150 hours and a 20‑day rehabilitation requirement.  She was also ordered to make a contribution of £600 towards the prosecution costs and pay a victim surcharge of £140.

3.   At around 2.30 pm on 4 September 2014, a man named Junior Laing and another unknown man entered a jewellery shop in Atherstone in North Warwickshire with a shotgun.  They threatened the staff and made off with a considerable amount of expensive jewellery.  The getaway driver was a woman named Charlotte Caines.  A witness noted down the registration number of the car and as a result both Laing and Caines were identified as suspects.  He was arrested on 15 September 2014.  She was arrested two days later.

4.   The offender was the girlfriend of Laing.  At the time of his arrest she lived in Swadlincote in Derbyshire.  That address was searched on the day of Laing's arrest.  In his police interview he advanced an alibi for the day of the robbery.  He said he been with the offender in her home at the time the robbery took place.  The police tried to obtain a witness statement from the offender but without success.  
5.   Laing was charged with his involvement in the robbery.  In his defence statement, which was served on 2 March 2015, he repeated the account he had provided in his earlier police interview and indicated that he would be calling the offender as a witness at his trial.

6.   The police then renewed their efforts to take a witness statement from her.  On 5 April 2015, Detective Constable Russell met the offender at her home and took a 6‑page witness statement from her.  In that statement she maintained that Laing could not have committed the robbery on 4 September 2014 because had been with her at her home that afternoon.  

7.   Laing and Caines stood trial at Birmingham Crown Court in late April and early May 2015.  He maintained his alibi defence at trial.  He did not give evidence but called a witness to say that he had been at the offender's home on the afternoon of the robbery.  The offender attended court to give evidence on behalf of Laing but she was not called.  The jury convicted both Laing and Caines. 

8.   On 10 May 2015, the police arrested the offender on suspicion of perverting the course of justice by providing Laing with a false alibi.  In her police interview she maintained that his conviction was a miscarriage of justice.  She repeated the account provided by her in her witness statement of April 2015.  

9.   She was charged with the offence later particularised in the indictment and at her trial maintained that at the time of making her witness statement she genuinely believed that what she had told the police was true, although on reflection she may have been mistaken about the whereabouts of Laing on 4 September 2014.  She denied lying to the police and concocting a false alibi for Laing.  That was an account that was plainly rejected by the jury.

10.  The offender is aged 35, and had two convictions: one for an offence of shoplifting committed in 1994 when she was 12 years old; and another for an offence of common assault committed in July 1997 when she was 15.  

11.  There were a number of reports available to the Recorder.  The first report was a psychiatric report dated 30 November 2016 prepared by a Dr Ruth Scally, a consultant psychiatrist.  Dr Scally concluded that the offender was fit to plead and stand trial.  She did not present as someone with any symptoms of an active mental disorder.  Dr Scally reviewed the offender's medical notes and these confirmed that she had been to see her GP in December 2013 and October 2014 and that her antidepressant medication had been increased in December 2014.  Her medical notes supported the conclusion that she was suffering from a mild to moderate depressive episode in 2014.  In Dr Scally's opinion depressive episodes can be associated with cognitive impairment and so it is possible that in April 2015 the offender's recall of an offence in September 2014 was affected.  

12.  The second report was a psychological report dated 6 February 2017 prepared by Dr Tim Hull, a consultant clinical psychologist.  The report was commissioned by the offender's solicitor so Dr Hull could comment on her mental state at the time she made her witness statement.  

13.  In her interview with Dr Hull the offender reiterated her belief in the truthfulness of the account she provided to the police in her witness statement.  She reported having an imperfect memory for the last two years or so and added that sometimes she did not know what was real and what was not.  She said that sometimes she remembers things that have never happened.  She added that she had been suffering with depression for the last two years and at times she felt as if she were losing her mind.  

14.  Having carried out an assessment, Dr Hull concluded that she was able to concentrate to a satisfactory degree and her intellectual functioning was within the average range.  Her memory was relatively poor and she had a marked tendency to yield to leading questions and a very marked tendency to change her answers in response to negative feedback.  If the offender was affected by depression that might have increased her sense of confusion when she spoke to the police.  However, as Dr Hull recognised, these concerns were speculative and he was unable to comment on whether the offender lied to the police when she made her witness statement or whether she was genuinely mistaken as to the events of 4 September 2014. 

15.  The third report was a pre‑sentence report dated 6 September 2017.  In discussions with the author of the report the offender continued to maintain her innocence.  She lived with her daughter in rented accommodation.  Her daughter was aged 18 and on the verge of starting a university course.  The offender worked in a bar.  She had no debts and no savings.  She was in the process of setting up a business concerned with spiritual healing.  She was no longer in a relationship with Laing.  Her new partner was supportive of her.  She presented as a low risk of reoffending and the author assessed her as vulnerable and suggested that she could be at risk of self‑harm if she were given a custodial sentence.  The author recommended the imposition of a suspended term of imprisonment with a number of community requirements.

16.  In mitigation, defence counsel submitted that in September 2014 the offender had been emotionally vulnerable and committed to a destructive relationship with Laing.  When he was arrested on suspicion of robbery she desperately wanted the allegations to be untrue.  She allowed her wishful thinking to influence the account she gave to the police in April 2015.  Defence counsel pointed to the offender's lack of recent convictions, to her vulnerability and then to delay in the matter coming before the court.

17.  In her sentencing remarks, the Recorder observed that the offender had provided a "wholly false statement" to the police to provide her then partner with an alibi.  That was a very serious matter.  The Recorder focused on three matters that were of particular importance to sentencing for this offence.  The first was the seriousness of the underlying offence.  In her view, "armed robbery was near of top end of the scale".  The second was the persistence of the lie.  In this case, while the offender did not give evidence, she did attend court ready, willing and able to repeat her lies.  The third was the effect of these lies, which in this case was muted because in the end the jury convicted Laing.  The Recorder rejected the suggestion from the offender that her lying account was in any way the product of a disordered mind.  In the circumstances, the Recorder decided that there had to be a period of imprisonment but she felt able to suspend it.

18.  Mr Jarvis, who appears for the Attorney General, submitted that the sentence was unduly lenient.  He does not criticise the sentence of 24 months as such but he argues that it should not have been suspended.  He relied on repeated statements of principle in this court as to the seriousness of the offence with its tendency to subvert the course of criminal justice and the need to impose an immediate custodial sentence absent exceptional circumstances: see, for example, Attorney General's Reference No 35 of 2009 (Binstead) [2010] 1 Cr App R (S) 61 at paragraph 410.

19.  For the offender, Ms Kubik submitted that the sentence may have been lenient but it was not unduly so, and that in the particular circumstances the Recorder was entitled to suspend the sentence.  She had the advantage of presiding over the trial and was therefore in a strong position to make an assessment of the offender for the purposes of sentence.  She submitted that the Recorder was entitled to the view that the offender's presentation and evidence was truly unusual and was entitled to conclude that she was vulnerable and would have difficulty coping with prison.  The offence was complete at the time the statement was taken and the false alibi was given on 5 April 2015.  The police never accepted that it was true and although she attended with a view to giving evidence, she did not in fact give evidence.  The statement did not ultimately assist Laing.

20.  Ms Kubik pointed to the significant delays.  Although there had been a trial, the offender had not been charged until August 2016 and there was the further mitigation of her apparent vulnerability and background depression.  At her request the transcript of the evidence that she gave before the jury has been made available to this Court. This plainly shows that she is vulnerable.

21.  Ms Kubik drew attention to the Sentencing Council's definitive guidelines on the imposition of community and custodial sentences and submitted that there were no factors in this case which indicated that it would not be appropriate to suspend the sentence and some of the factors which weighed in favour of doing so.  First, there was a realistic prospect of rehabilitation represented by her compliance with the requirement of the sentence that was passed, as could be seen by a post‑sentence report, which we have seen.  This showed, and was supplemented by her oral submissions, that the offender had complied with the requirements of the sentence.  Ms Kubik provided updated figures that she had completed 63 hours and 45 minutes of unpaid work and complied with the weekly RAR requirement.  She drew to our attention a letter from the YMCA where she has done work, which speaks to her credit.  She informed the court that the offender is engaged on an online accredited cognitive behavioural therapy course, which she believes will assist her.  She has, in the words of Ms Kubik, done everything she could to comply with the sentence.  Second, she points out that there was strong personal mitigation.  Third, she submits that immediate custody would impact on others, in particular her daughter.

22.  We have considered the submission of the Attorney General and the submissions on behalf of the offender.  The range of sentences that are passed for this offence indicate the extent of the harm and the degree of culpability that may be present: see, for example, the various cases referred to in Archbold 28‑25 to which the Recorder referred in her sentencing remarks.  As this court said in R v Tunney [2007] 1 Cr App R (S) 91 (565) at [10], and as the Recorder recognised, the three matters to be borne in mind when considering the sentence in such cases are, first, the seriousness of the underlying offence to which the perverting of the course of justice relates; secondly, the degree of persistence in the conduct in question; and, thirdly, the effect of the offence on the course of justice.  The degree to which the course of justice was in fact perverted.  

23.  The Recorder correctly identified that the underlying offence of robbery was serious and that the offender had been prepared to go to court to give evidence in support of the untruthful alibi.  However, as the Recorder also noted the lies did not in the event affect the outcome of the trial: Laing was convicted.  The Recorder recognised that the offender was quite vulnerable, that she had made changes in her life and had not been in trouble in the period of over 2 years since the trial of Laing.  It was in the light of these matters as well as the time that had elapsed since the offence, the contents of the psychological and psychiatric reports and the pre‑sentence report that she felt able to suspend the sentence.  

24.  The question then is whether the decision to suspend the sentence resulted in a sentence that was unduly lenient.

25.  This court has frequently reiterated two material points in relation to sentencing for this offence.  First, that perverting the course of justice is always a serious offence since the criminal justice system cannot properly operate if people act to subvert it.  Secondly, and as a consequence, the offences will almost always require the imposition of a substantial period of imprisonment: see the judgment of Lord Taylor CJ in Attorney General's Reference No 44 of 1994 (Middleton) [1996] 1 Cr App R (S) 256 at [260].  This sentencing approach was reiterated in Attorney General's Reference No 35 of 2009 (Binstead) [2010] at [11], where the court added:

" ... it is a longstanding principle that perverting the course of justice is so serious an offence that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances ... That is because such actions as giving a false account of events to investigating authorities undermines the very system of criminal justice which is thereby impeded in its functioning." 

26.  The reference to exceptional circumstances should perhaps be understood to mean that it will be an unusual case where an immediate sentence of imprisonment will not be imposed.  This explains why short terms of immediate imprisonment are passed in such cases where otherwise they might be suspended.

27.  This approach has more recently been endorsed in R v Omayr & Rehman [2017] EWCA Crim 814 at [21]:

"The authorities show that this type of offence requires a reflection of the gravity of the offending and the need for deterrence."

28.  It follow that the approach of the court is to regard this offence as one where in the usual case the sentence will not be suspended.  To use the language of the definitive guidelines on the imposition of community and custodial sentences:

"Appropriate punishment can only be achieved by immediate custody." 

29.  Whether the case is an unusual one where the sentence can properly be suspended will depend on the facts of the case, the degree of culpability and harm and those factors also set out in these guidelines:
                       (1) whether there is a realistic prospect of rehabilitation;
                       (2) whether there is strong personal mitigation; 
                       (3) whether imprisonment would result in a significant harmful impact on others.  

30.  We are not persuaded the consideration of the factors assists the offender here.

31.  This was a case in which she voluntarily chose to pervert the course of justice out of a misplaced sense of loyalty and the strongest indication of a realistic prospect of rehabilitation would have been a plea of guilty.  There was, we would accept, personal mitigation available to her and evidence of some impact on her adult daughter but these were not such as to make this case an unusual one.  

32.  We note in this context Attorney General's Reference No 34 of 2015 [2015] EWCA Crim 1152.  In that case the offender was a single mother with charge of two young children and personal mitigation had led the Crown Court to suspend a 24 month sentence of imprisonment.  This court held that the suspended sentence was unduly lenient, although it reduced the term of imprisonment.  The underlying offence, we recognise, was more serious than here.  But the observations of the court in that case at [26] are relevant:

"We consider that the public interest in dealing with crime of this gravity, together with the need for deterrence, significantly outweighs the detriment to the children of this offender so that an immediate sentence should have been passed. We do not view the circumstances of this case as so exceptional as to justify the course taken by the judge. In so concluding we have taken into account the fact that an experienced judge who had conducted the trial passed sentence. We have no doubt that he gave this case his usual anxious consideration. However, on this occasion we consider that he got the balance wrong. The sentence passed was in the circumstances not merely lenient, but unduly so."   

33.  We would add that in the present case too the Recorder plainly gave the case the most serious consideration, as her sentencing remarks make clear.  Although the delays were rightly a matter of concern, this too was not such as to justify the unusual course of suspending the sentence.  In our view, there were not exceptional circumstances.  

34.  On the facts and the circumstances that we have set out we consider that an immediate term of imprisonment should have been imposed and that the sentence that was passed was not only lenient, but unduly so.  We therefore quash the suspended sentence and pass a sentence of immediate imprisonment.  However, in considering the length of such term, we take into account two particular matters which serve to reduce the length of the sentence.  First, an element to reflect the fact that the offender has been sentenced twice (what is sometimes referred to as double jeopardy) since there are no guidelines for this offence: see Attorney General's Reference No 45 of 2014 (Afzal) [2014] EWCA Crim 1566.  Second, an element to reflect the fact that the offender has complied satisfactorily with the conditions of the suspended sentence since the date it was imposed.  

35.  In these circumstances, we quash the 24-month suspended sentence and substitute a sentence of 18 months' immediate imprisonment.  That sentence will take effect from today.