Factual and Procedural Background
This opinion addresses an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 198 for leave to refer to the court a sentence considered unduly lenient. The offender, a 26-year-old female, was sentenced on 6 September 2019 by a Crown Court judge after pleading guilty to a single count of blackmail contrary to section 21(1) of the Theft Act 1968. Over approximately one year, the offender deceived the victim, a former sexual partner, by fabricating a pregnancy, childbirth, illness, adoption, and death of a child purportedly fathered by the victim. She demanded and obtained over £29,000 from the victim, exhausting his life savings and causing significant debt. The offender was the primary carer of two young children and was expecting a third at the time of sentencing. She pleaded guilty at the plea and trial preparation hearing, and the judge sentenced her to four months' imprisonment, taking into account her role as a single parent and other mitigating factors.
Legal Issues Presented
- Whether the sentence imposed on the offender for blackmail was unduly lenient.
- The appropriate starting point and range for sentencing in blackmail cases involving prolonged and psychologically harmful conduct.
- The relevance and extent of mitigation related to the offender’s personal circumstances, including her role as a primary carer of young children.
- The application of the principle of "double jeopardy" when increasing a sentence after the offender has served the original custodial term.
Arguments of the Parties
Appellant's Arguments
- The starting point for sentencing was significantly too low and should have been no less than four years' custody before mitigation.
- The offence involved numerous aggravating features: persistence of threats and demands, duration over more than a year, substantial sums relative to the victim’s means, distress caused by the fabricated story, and threats including a false allegation of rape.
- Mitigating factors acknowledged included the offender’s lack of previous convictions, difficult background, mental health issues, remorse, full admissions, delay in bringing the matter to court, her role as primary carer, and early guilty plea.
Respondent's Arguments
- Acceptance that the original sentence was unduly lenient but emphasis on the mitigating factors such as low risk of re-offending and the offender’s motivations rooted in hurt and jealousy rather than greed alone.
- Highlighting the offender’s role as mother and primary carer of young children, including an unborn child, as important sentencing considerations.
- Arguing that returning the offender to custody would be highly disruptive to her and her family, particularly the children.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Petherick [2012] EWCA Crim 2214; [2013] 1 Cr App R(S) 116 |
Guidance on sentencing offenders who are sole carers of dependent children, including balancing custodial sentences with family life impact. |
Used to weigh the offender’s role as primary carer in sentencing considerations and potential mitigation. |
| R v Hadjou (1989) 11 Cr App R(S) 30 |
Characterisation of blackmail as a serious crime warranting severe, deterrent sentences. |
Supported the court’s recognition of the gravity of blackmail offences and need for appropriate sentencing severity. |
| R v Greer and Greer [2005] EWCA Crim 2185; [2006] 1 Cr App R(S) 93 |
Explanation of the psychological harm caused by blackmail, including enduring fear and anxiety. |
Helped establish the seriousness of the offender’s conduct in causing psychological distress to the victim. |
| R v Ford [2015] EWCA Crim 561; [2015] 2 Cr App R(S) 17 |
Considerations for sentencing blackmail offences, including amount demanded, psychological harm, and persistence. |
Applied in assessing aggravating factors such as the substantial sums extorted, prolonged duration, and psychological harm. |
| Attorney General's Reference No 40 of 2002 (R v Collard) [2002] EWCA Crim 2219; [2003] 1 Cr App R(S) 98 |
Examples of blackmail offences and sentencing approaches. |
Reviewed but found not especially illuminating for the present sentencing decision. |
| R v A [2007] EWCA Crim 245; [2007] 2 Cr App R(S) 93 |
Examples of blackmail offences and sentencing approaches. |
Reviewed but found not especially illuminating for the present sentencing decision. |
| Attorney General's Reference No 67 of 2007 (R v Graeme W) [2008] EWCA Crim 2878; [2008] 1 Cr App R(S) 92 |
Examples of blackmail offences and sentencing approaches. |
Reviewed but found not especially illuminating for the present sentencing decision. |
| R v Scott M [2008] EWCA Crim 1915; [2009] 1 Cr App R(S) 88 |
Examples of blackmail offences and sentencing approaches. |
Reviewed but found not especially illuminating for the present sentencing decision. |
| Attorney General's Reference (R v Mincher) [2016] EWCA Crim 1528; [2017] 1 Cr App R(S) 12 |
Suggested sentencing bracket for blackmail offences from four to at least eight years. |
Supported the court’s conclusion that the starting point for this case was significantly higher than originally imposed. |
| R v Jamie Lee Pickering [2019] EWCA Crim 936 |
Example where a suspended sentence was found unduly lenient and replaced by immediate custody for blackmail associated with serious sexual assaults. |
Referenced to illustrate severity required when blackmail is compounded by other serious offences. |
| R v Murphy [2019] EWCA Crim 438; [2019] 2 Cr App R(S) 13 |
Four-year starting point for blackmail offences involving persistent demands over time. |
Used to support the court’s assessment of seriousness related to persistence and duration of offending. |
| Attorney General's Reference Nos 14 and 15 of 2006 (R v French and Webster) [2006] EWCA Crim 1335; [2007] 1 Cr App R(S) 40 |
Guidance on the principle of "double jeopardy" and discounts when increasing sentences on appeal. |
Applied in considering the reduction of the substituted sentence to account for distress and anxiety caused by reopening the case after the offender had served the original sentence. |
| Attorney General's Reference No 45 of 2014 (R v Afzal and Malik) [2014] EWCA Crim 1566 |
Discussion of sentencing regime improvements, clarity, and the role of the Attorney General in referring sentences. |
Contextualised the court’s approach to timely referral and sentencing consistency. |
Court's Reasoning and Analysis
The court began by acknowledging the serious nature of blackmail, referencing established case law that characterises the offence as causing enduring psychological harm and deserving severe punishment. It identified several aggravating factors in the present case, including the persistence and duration of the blackmail over more than a year, the substantial sums extorted relative to the victim’s means, and the distress caused by the fabricated narrative involving pregnancy, childbirth, and death. The court noted the offender’s threats to make a false rape allegation as an additional aggravating element.
In balancing these aggravating factors, the court considered the offender’s mitigating circumstances: absence of previous convictions, history of depression and anxiety, genuine remorse, full admissions, delay in prosecution, and her role as primary carer of young children including an unborn child. The court applied guidance from precedent on sentencing primary carers, emphasizing the need to balance custodial sentences with the impact on family life, but also recognizing that the gravity of the offence can reduce the weight of such mitigation.
The court found that the original sentencing judge had set an unduly low starting point and had double-counted mitigation related to the offender’s parental status. It concluded that the appropriate starting point should have been approximately five years’ imprisonment, reduced to four years after mitigation, and further reduced to two years and eight months with full credit for the guilty plea.
Applying the principle of "double jeopardy," the court considered the offender’s release on home detention curfew and the distress caused by reopening the sentence. It reduced the substituted sentence by 25% to 24 months. The court then weighed the need for immediate custody against the offender’s personal circumstances and rehabilitation prospects, ultimately deciding to suspend the 24-month custodial sentence and impose a Rehabilitation Activity Requirement of up to 20 days over two years.
The court emphasized the unusual facts of the case and cautioned that the decision should not be taken as precedent for other blackmail offenders.
Holding and Implications
The court granted leave to refer the sentence and held that the original sentence of four months' imprisonment was unduly lenient. It substituted the sentence with a 24-month custodial sentence, suspended, coupled with a Rehabilitation Activity Requirement of up to 20 days within two years.
The direct effect of the decision is to impose a substantially longer custodial sentence than originally awarded, reflecting the seriousness of the offence and the harm caused. However, the sentence was suspended in recognition of the offender’s personal circumstances and prospects for rehabilitation. The court explicitly stated that this case is fact-specific and should not be seen as a general precedent for sentencing in blackmail cases.