R v Kefford (Mark James)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeMR JUSTICE LEVESON
Judgment Date05 March 2002
Neutral Citation[2001] EWCA Crim 2847,[2002] EWCA Crim 519
Date05 March 2002
Docket NumberCase No: 2001/6796/Y1,No: 200203666 X4

[2001] EWCA Crim 2847

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Before:

Lord Justice Mance

Mr Justice Penry-Davey and

Mr Justice Leveson

No: 200203666 X4

Regina
and
Glen Raymond Hibbert

MISS M KRONE appeared on behalf of the Appellant

MR JUSTICE LEVESON
1

On 14th May 2001 in the Crown Court at Lincoln this appellant pleaded guilty to an offence of false imprisonment. After a trial, at which he was acquitted of two charges of rape, he was sentenced by His Honour Judge Heath on 8th June 2001 to a term of three and a half years' imprisonment. He now appeals against sentence by leave of the single judge.

2

The facts must be summarised in a little detail. The complainant, who was 28, had known the appellant since they were teenagers at school together. They had a short relationship whilst at school and remained friends after they broke up. In June 2000 the complainant's relationship with her boyfriend ended and one night she accidentally met the appellant in a public house. After that they started going out together and in October 2000 moved into a flat.

3

On 1st December 2000 the complainant discovered that the appellant had run up a phone bill of £500 using sexual chat lines. She spoke to the appellant about this but he was drunk, so she decided to go out for the evening with a friend. On the way home she bought a takeaway meal for herself and the appellant, but when she arrived home at about 11.30 pm he was drunk and tried to start an argument with her. She decided to go to bed and went to the bedroom, locking the door behind her. The appellant kicked open the bedroom door, pushed her backwards and placed his hand over her mouth to prevent her screaming. He then removed his hand and asked her if she had calmed down.

4

The complainant went to the bathroom, followed by the appellant, and the argument continued there, during the course of which he grabbed hold of her, causing her to bang her head, an injury which she later conceded in evidence might have been accidental. They returned to the bedroom and the argument continued.

5

He found her diary and began reading entries concerning her former boyfriend. He accused her of going with different men and became very angry, tearing up the diary. There was a short struggle between them, before he told her he was going to commit suicide by jumping off the Humber Bridge. He then told her to go to sleep and he lay down in front of the bedroom door, preventing her from leaving the room and obviously intending to prevent her from leaving the room.

6

The complainant fell asleep at about 3 am. She woke after about three hours to find the appellant asleep on the floor in front of the door. She was frightened enough to write a note stating that she was being held captive by her boyfriend, requesting help and asking the recipient to contact her parents, whose phone number she added to the note. She pushed the note through the bedroom window and went back to bed.

7

She heard the appellant get up and leave the room but could not contemplate jumping from the bedroom window because the drop was too severe. When the appellant returned to the room, he spoke briefly to her and then left again, locking the door behind him. She then drifted off to sleep.

8

Three hours later, at 10 am, both parties woke up and started talking to each other in a more reasonable manner. They had intercourse together but then the situation deteriorated again. The appellant fetched a Stanley knife and told her he was going to tie her up, leave the flat and jump off the bridge. He cut the flex off an iron but changed his mind and sat in front of the bedroom door, slashing his wrists with the knife. He told her she could leave him when he was dead.

9

The appellant then phoned his former partner and told her he had lost his temper with the complainant and slashed his wrists. After he put the phone down his former partner rang back and persuaded him to allow the complainant to leave. After she left at about 1 pm — in other words something like 13 hours after the incident commenced — she ran to a nursing home nearby and contacted the police.

10

At times during the ordeal she had been very frightened and had made repeated requests to the appellant to let her leave, which he had ignored. At one point she had thought he was going to kill her.

11

The police subsequently arrived at the flat and arrested the appellant. When interviewed, he admitted the offence and accepted that he had detained her overnight. He said that he was sorry for the worry and distress that he had caused her.

12

Turning to the appellant's antecedents, this is not the only occasion when he has used violence towards a woman. Ignoring an incident said to have occurred some ten years previously, which probably arose in very different circumstances, some five years before this incident he was convicted of unlawfully wounding his previous partner, when in drink. He lashed out at her with a pair of scissors, stabbing her in the arm. He was put on probation for that offence. When discussing the matter for the purpose of the pre-sentence report, the appellant acknowledged to the probation officer that his behaviour during this incident and in his previous offences presented a serious risk of harm to his victim, and the probation officer agreed with that assessment.

13

In support of this appeal Miss Krone argues that the appellant was acquitted of rape. The jury had found consensual intercourse and the sentence should have been in accordance with the appellant's version of the facts. That submission contains what, on the face of it, appears to be a misunderstanding. First, the jury did not find consensual intercourse. They were not asked to do so. By their verdict they expressed themselves not sure that the appellant was guilty of rape. As a result, that aggravated allegation dropped out of the picture.

14

Having heard both the appellant and the complainant, the learned judge was in a position to reach his own view of the facts of the false imprisonment and to sentence accordingly. He was not bound to reject that which the complainant said about the circumstances of the night, provided that he made proper allowance for the impact of the verdicts in her account of the entire incident. That was what he did in passing sentence. He said that the appellant had subjected this perfectly decent woman to a terrifying ordeal, during the course of which he had imprisoned her in her home for a number of hours. She had been subjected to the terrifying prospect of seeing him commit suicide in front of her, and he used some violence towards her. Despite her entreaty to release her, he had refused and at times she was terrified for her own safety. Credit was to be given for his early guilty plea but this was not the first time he had behaved entirely inappropriately towards women.

15

The learned judge concluded that three and a half years' imprisonment was the appropriate sentence. This view of the case was one which the learned judge was entitled to take. When granting leave, the learned single judge anticipated at best only a small reduction.

16

Today we have been referred to a number of authorities, including Brown (1994) 15 Cr App R (S) 337, where the aggravating and mitigating circumstances are each rather different but a three year sentence was upheld. Had we been passing sentence ourselves, it may well be that each one of us might have passed a slightly lesser sentence than that imposed by the learned judge, but that is not the test and we are not in the position which he was. This sentence is neither wrong in principle nor manifestly excessive. The appeal is, therefore, dismissed.

LORD JUSTICE MANSE: We ought to consider the matter of defence costs. What are your client's means, Miss Krone? He has legal aid, so it does arise, the recovery of defence costs. What are his means?

He is in custody and presently has no means.

LORD JUSTICE MANSE: Does he have any assets?

As I understand it, the accommodation was rented accommodation. He has no assets.

LORD JUSTICE MANSE: Is there a form on the court file? Normally, there is a form. No. On the information available, it does not appear appropriate to make any recovery of defence costs order. Thank you.

[2002] EWCA Crim 519

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON

(HIS HONOUR JUDGE BURFORD QC)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Chief Justice of England and Wales-Lord Woolf

Lord Justice Rose and

Lord Justice Judge

Case No: 2001/6796/Y1

Between
R
Respondent
and
Kefford
Appellant

Mr Ian Hope for the Appellant

Lord Woolf CJ: This is the judgment of the Court.

1

The constitution of this Court, consisting of three of the most senior judges in England and Wales who sit in the Court of Appeal (Criminal Division), demonstrates the general importance of this judgment which is on an appeal against sentence.

2

The judgment has to be...

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