Foster, R. v

Factual and Procedural Background

This opinion concerns an application for leave to appeal against sentence referred by the Registrar to the Full Court. The Appellant pleaded guilty on 3 December 2024 at the Crown Court at The City to an offence of sending an electronic communication with intent to cause distress contrary to section 1(1) of the Malicious Communications Act 1988. On 13 June 2025 the Appellant, aged 45, was sentenced to an immediate term of custody of 13 months.

The factual matrix set out in the sentencing materials was that, in 2021, the Complainant had arranged for the Appellant to care for a litter of XL Bully puppies at the Appellant's home in return for payment when the animals were sold. Concerns were reported about costs and the care the dogs were receiving. On 11 January 2022 the Complainant attended the Appellant's address with his son and another female to retrieve the puppies. The Complainant remained outside while the puppies were passed to him. Inside the address there was a confrontation involving the Appellant and another female with the Complainant's son; there was shouting and references to getting a hammer and breaking knees, the son took the hammer away and the group left with the dogs. These events were reported to the police but no action followed at that point.

After the confrontation the Appellant sent a series of electronic messages to the Complainant, including threats such as "You've made the biggest mistake of your life... This isn't over and you'll see that soon" and other messages to the effect of "All my condolences to your family." The sentencing judge described these communications as among the most serious forms of malicious communications he had seen.

On 12 January 2022 an unrelated but temporally proximate violent incident occurred: a masked man carrying a long-barrelled shotgun entered the communal stairway of the Complainant's address, kicked the front door off its hinges and discharged the shotgun on multiple occasions as events unfolded. The Appellant's son was subsequently observed among a group of males in the vicinity. The prosecution were not able to prove that the Appellant was party to that violent attack.

The matter had been listed for trial on other counts; on day two of the trial the Appellant offered a plea to the malicious communications offence. The pre-sentence report recorded that the Appellant had no previous convictions but one caution (2014 for battery and criminal damage), recommended community punishment with rehabilitation activity requirement days and approximately 300 hours of unpaid work, and noted that the Appellant had been a victim of domestic violence and provided substantial care to an adult daughter who had recently given birth. Victim personal statements described the effect of the offending on the Complainant.

At sentence the judge applied the following approach: a starting point of 21 months (there being no offence-specific guideline), a reduction to 18 months to reflect character, a further reduction to 15 months to reflect mitigation including that this would be the Appellant's first prison sentence, and finally a 10% reduction for entry of the guilty plea on the second day of trial (despite the plea being to an offence not on the indictment). The result was an immediate custodial sentence of 13 months. The sentencing judge did not expressly refer to the Overarching Guideline on Imposition of Community and Custodial Sentences (effective 1 February 2017). A new guideline effective 1 September 2025 was noted as irrelevant to the appeal.

Legal Issues Presented

1. Whether the Appellant's sentence was improper because she was, in substance, sentenced for a violent incident (the discharge of a shotgun) for which she had not been convicted.
2. Whether the sentencing judge erred by not expressly addressing whether the custodial sentence should be suspended in accordance with the Overarching Guideline on Imposition of Community and Custodial Sentences.
3. Whether the credit applied for the Appellant's guilty plea (a 10% reduction) was insufficient and rendered the sentence manifestly excessive.
4. Whether insufficient regard was had to the Appellant's personal mitigation (including history as a victim of domestic violence and caring responsibilities) such that the sentence was manifestly excessive.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued she had been sentenced for conduct (the shotgun attack/discharge) for which she had not been convicted and that the judge's approach improperly incorporated responsibility for that violence.
• The Appellant contended that insufficient regard had been paid to personal mitigation (domestic violence history and caring responsibilities), making the sentence manifestly excessive.
• The Appellant challenged the amount of credit given for the guilty plea, arguing the 10% reduction was inadequate.
• Attorney Shenton adopted as a ground of appeal that the sentencing judge had not expressly addressed whether the sentence should be suspended under the applicable guideline.

The opinion does not contain a detailed account of the respondent's (prosecution's) legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Full Court considered the grounds advanced and addressed each in turn. The court's analysis proceeded on the basis that a sentencing judge is entitled to take account of "all the relevant circumstances." The court rejected the characterisation that the judge had sentenced the Appellant for the firearm attack itself. Although the violent incident (the shotgun discharge) occurred in temporal proximity and the Appellant's son was involved, the prosecution had not proven the Appellant's participation in that attack. The court emphasised that the judge was nonetheless entitled to take into account the seriousness of the electronic messages themselves — which the judge described as effectively indicating that the recipient was going to die — and to treat such communications as very serious offending when assessing appropriate punishment.

On the plea discount the court observed that a 10% reduction had been applied because the plea was entered on the second day of trial. The court accepted that the plea could have been offered earlier and that it was to an offence not on the indictment, but held that the sentencing judge's approach was within permissible discretion and consistent with the overarching guideline on discounts for guilty pleas. The court noted that other judges might have adopted a different reduction, but that did not render the sentence erroneous.

With respect to mitigation, the court acknowledged the Appellant's difficulties recorded in the pre-sentence report — including that she had been a victim of domestic violence and had significant caring responsibilities — and observed that the sentencing judge had made discounts to reflect mitigation. While other judges might have made a larger allowance for mitigation, the Full Court was unable to identify any error in principle or a conclusion that the sentence was manifestly excessive on that basis.

The question whether the sentence should have been suspended required consideration of the Overarching Guideline on Imposition of Community and Custodial Sentences. Although the sentencing judge did not expressly refer to that guideline, the court set out the factors commonly relied on when deciding suspension: whether the offender presents a risk/danger to the public; whether appropriate punishment can only be achieved by immediate custody; and whether there is a history of poor compliance with court orders. The court observed that the last factor plainly did not apply and that there was no evidence that the Appellant presented a risk of danger to the public (this was not specifically addressed in the pre-sentence report).

The Full Court considered the factors that might point towards suspension: (i) a realistic prospect of rehabilitation (which the court accepted applied), (ii) personal mitigation (which the court found present but not "strong"), and (iii) whether immediate custody would result in significant harmful impact upon others (the judge had recognised the hardship for the Appellant's daughter but was not persuaded to suspend). In the circumstances — and adopting the sentencing judge's factual conclusions where not wrong — the Full Court concluded the judge was entitled to take the view that appropriate punishment could only be achieved by immediate custody because of the seriousness of the messages sent with intent to cause distress, and therefore that the sentence need not be suspended.

Holding and Implications

Leave to appeal against sentence was refused; the sentence remains as imposed.

Direct effect: the Appellant's immediate custodial sentence of 13 months stands. The opinion records that the Appellant had originally been told she would serve until 1 November before release on home detention curfew, but that date was brought forward to the beginning of September (approximately 20 days from the hearing).

Broader implications: the Full Court declined to set any new legal principle in this opinion. The decision rests on the court's application of established sentencing principles to the facts: (a) a sentencing judge may take account of all relevant circumstances when assessing seriousness, (b) the application of a guilty-plea discount is a matter of judicial discretion within the framework of the applicable guideline, and (c) suspension of sentence requires specific consideration of the particular guideline factors — the absence of an express reference to the guideline did not, on these facts, demonstrate error or require interference with sentence.