On 19 April 2017, expectant mother Elouise Sullivan aged 20 was given an immediate custodial sentence of 16 weeks following a guilty plea to (what we presume were) two Communications Act 2003 offences.
Sullivan pleaded guilty to two offences of “sending offensive, indecent, obscene and menacing messages” – this appears to refer to an offence under s.127 of the Communications Act 2003. The offence carries a maximum sentence of 6 months.
Sullivan learned that the father of her unborn child had slept with two other women and embarked upon a fourth month “campaign of abuse” including sending racist insults and threats of physical harm. These included the use of the racist slur “monkey” in respect of one victim and a threat to jump up and down on the other victim’s head until blood was coming from her eyeballs.
Sullivan was said to be “more angry” with the women than her boyfriend as she “trusted them more”. She was given warnings by the police during the four month period but persisted in abusing the two women.
She had previously convictions including for robbery and violence.
The judge imposed a 16 week sentence, stating that only an immediate custodial sentence was appropriate. Additionally, the judge imposed a restraining order. The Mail reported that she was also fined £115.
A couple of points to make regarding the report:
1. The news report wasnt entirely accurate in defining the offence. Section 127 actually states:
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
“Offensive” messages are not sufficient, they must be grossly offensive to meet the required standard.
2. The “fine” of £115 is almost certainly not a fine, but the statutory surcharge which must be imposed by virtue of CJA 2003 s.161A. SI 2016/389 increased the sums such that a period of imprisonment up to six months attracts a £115 surcharge. That seems to fit the bill here.
Moving on to the actual sentence imposed, the sentencing guidelines for this offence (part of the Magistrates’ Courts Sentencing Guidelines) follow the usual format:
Level 1 offences are those with high culpability and greater harm
Level 2 are those with either high culpability and lesser harm or lower culpability and greater harm
Level 3 are those with lower culpability and lesser harm
Here there are appear to be none of either the greater harm or higher culpability factors present, however the prolonged nature of the abuse, the racial and violent elements and the failure to desist upon the receipt of (presumably) a harassment warning all increase the seriousness of the offences quite dramatically. Let it not be forgotten that there were two victims and two offences. The sentence doesnt seem to be too far out of the way, however the pregnancy – in particular the fact that Sullivan is seven months pregnant adds an interesting aspect to the decision.
In recent years, the Court of Appeal has taken a tougher approach to personal mitigation – that is, mitigation which relates to the offender (or their family etc.) rather than the offence or the circumstances surrounding it. The court has dismissed appeals grounded in the claims that ill health or old age should act as a significant mitigating factor warranting a large reduction in sentence. The basis for such decisions has been that there is a presumption that the prison system can cope with such health needs and a move towards the requirement that evidence to the contrary be presented to the court if a submission to the contrary is to be made.
The decision to impose immediate custody (of 16 weeks – thereby taking Sullivan to or very near to full term if she is released at half way or shortly before on home detention curfew) therefore appears to be in line with the current approach taken by the Court of Appeal.
Was it necessary? Would a suspended sentence have sufficed? That is a matter of personal opinion, but it may be that the judge thought her options were limited as Sullivan was (presumably) unsuitable for unpaid work, and a curfew requirement would not add much by way of punishment given the fact she will be spending some time at home recovering from the birth and looking after her new born baby. In those circumstances, and given the need to mark this serious offending with a punishment, perhaps the judge was justified in concluding that a short sharp immediate custodial sentence was the correct approach.