Foster, R, v

Factual and Procedural Background

On 28 December 2023, in the Crown Court at The City, the Appellant pleaded guilty to five charges: making threats with a bladed article in a private place; damaging property; false imprisonment; assault occasioning actual bodily harm; and making a threat to kill. On 4 January 2024, before Judge Jackson KC, the Appellant, then aged 31, was sentenced to an extended sentence of 10 years, comprising 5 years 8 months custody with an extended licence of 4 years 4 months on the false imprisonment charge, and concurrent sentences for other charges. A restraining order was also imposed, restricting the Appellant's contact with the complainant and proximity to her residence. The Appellant appealed against the sentence.

The complainant, referred to as "S," was the Appellant's ex-partner. They had a volatile relationship lasting about nine years and three children together. On 23 November 2023, the Appellant visited S's home to see the children, became argumentative, and left later that evening. At about 1:30 am on 24 November, the Appellant returned by climbing scaffolding, was let into the house, and then became violent and aggressive. He locked the doors, threatened and assaulted S in front of the children, including holding a kitchen knife to her throat and making threats to kill her. The incident lasted approximately two and a half hours, during which the children witnessed the violence and threats. S eventually escaped through a window and sought help. The police recovered the children from the house. S sustained physical injuries and described long-lasting psychological trauma for herself and the children. The Appellant admitted to some assaults and threats but denied using a knife. The Appellant had a prior criminal record including battery and aggravated burglary.

In sentencing, the judge described the conduct as degrading and humiliating, noting the lasting psychological impact on S and the children. The judge started with an 8½ year sentence for false imprisonment, discounted for the guilty plea, and imposed concurrent sentences for other offences. The judge found the Appellant dangerous, justifying an extended sentence. The Crown Court sentenced without a pre-sentence report, which was later prepared and assessed the Appellant as posing a high risk of serious harm to S, the children, and any future female partners and their children.

The Appellant, represented by Attorney Shakoor, advanced six grounds of appeal challenging the dangerousness finding, the extended sentence, the length of the extended licence, the custodial sentence for false imprisonment, and the terms of the restraining order.

Legal Issues Presented

1. Whether the judge erred in finding the Appellant to be dangerous.
2. Whether the decision to impose an extended sentence was wrong in principle.
3. Whether the extended licence period was manifestly excessive.
4. Whether the custodial element of the sentence for false imprisonment was manifestly excessive.
5. Whether the length of the restraining order was disproportionate.
6. Whether prohibition 2 of the restraining order was disproportionate and ambiguous.

Arguments of the Parties

Appellant's Arguments

• The judge erred in finding the Appellant dangerous.
• The decision to impose an extended sentence was wrong in principle.
• The extended licence period was manifestly excessive.
• The custodial sentence for false imprisonment was manifestly excessive.
• The length of the restraining order was disproportionate.
• The second prohibition in the restraining order was disproportionate and ambiguous.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the custodial sentence for false imprisonment, affirming the judge's identification of it as the lead offence encompassing the criminality of the other charges. The court noted the judge's reliance on Attorney-General's References Nos 92 and 93 of 2014, which provided a structured approach to sentencing in false imprisonment cases, emphasizing factors such as detention length, violence, use of weapons, and victim impact.

Although the present case lacked certain aggravating features found in the precedent (such as multiple offenders, pre-planning, blackmail, or extreme violence), the court found significant aggravating factors including the prolonged detention of about two and a half hours, the domestic setting, the presence of children, locking of doors to prevent escape, violence combined with threats to kill, and the psychological and physical harm caused. The court highlighted that the incident constituted a serious form of domestic violence, citing R v Bowskill to affirm that domestic context is a serious aggravating factor in sentencing.

The court further considered R v Stanley, which underscored the importance of victim vulnerability and planning; here, the primary victim was a vulnerable woman and the children were also seriously affected. The court concluded the starting point of 8 years 6 months for false imprisonment was appropriate and not manifestly excessive.

The court acknowledged that a separate sentence for making threats with a bladed article should have been imposed concurrently but found no error warranting reduction in the overall sentence.

Regarding dangerousness and the extended sentence, the court found the judge was entitled to conclude that the Appellant met the criteria for dangerousness, supported by the Appellant's criminal history and the pre-sentence report assessing a high risk of serious harm. The court dismissed the appeal against the finding of dangerousness and the imposition of an extended sentence.

The court rejected the appeal against the length of the extended licence and the restraining order, finding them proportionate in light of the facts and risk assessment. However, the court identified ambiguity in the second paragraph of the restraining order relating to the geographic restriction on the Appellant's movements. The court amended the wording to clarify that the Appellant is prohibited from entering areas where the complainant is known or believed by the Appellant to be living, thus resolving the ambiguity.

Holding and Implications

The court DISMISSED all grounds of appeal except for a limited amendment to the restraining order. Specifically, the appeal was allowed only to the extent of clarifying the wording of the geographic prohibition in the restraining order.

The direct effect of this decision is to uphold the extended sentence and associated licence period imposed on the Appellant, affirming the seriousness of the offences and the appropriateness of the sentence in light of the Appellant's conduct and risk to others. The restraining order remains in place with the clarified wording. No new legal precedent was established; the court applied established principles and precedents to the facts of this case.