Photo from the BBC

Lam Hoe Yeoh – Doctor jailed for voyeurism

Introduction

It’s not been a great few months for doctors and the criminal law. On 26th November 2014, Dr Lam Hoe Yeoh became the latest addition on the list of doctors-that-the-GMC-will-strike-off when he was sentenced to 5 years for seven offences of voyeurism, six of making indecent images of children and one of possession of extreme pornography.

 

Facts

Dr Yeoh (who we are told that is a world expert on hearing loss) filmed people without their knowledge in toilets from January 2011 until he was arrested earlier this year.

We are told that he “used pen drives and watches to film at numerous locations across the country, including the Portland Hospital in central London, medical facilities in Exeter, Sutton, south London and Thames Ditton in Surrey“, although he did sometimes film on trains (and presumably other public places) as well.

He was caught when one of his camera fell off where he had put it. It seems that this was traced back to him as he had been caught on the camera turning it on.

 

Sentence

So, what do we make of it?

First off, the BBC wasn’t entirely clear in their reporting. In the report it is said that Dr Yeoh received “the “substantial” jail term and three years on licence“. This presumably means an Extended Sentence of 8 years, with a 5 year sentence and 3 years on licence (we looked at what this means yesterday).

But in looking at the 5 year custody element, we turn to the Sentencing Guidelines.

Indecent Images

The more serious offence is the child pornography ones. These are at page 76 of the Guidelines.  We would note that this is an area that used to be very well covered by the Oliver guidelines. The new ones here are far less useful, but that’s progress for you.

We would note here that this is a case of actually making indecent images (which is not often the case with these sorts of offences, given the way that it is defined), which is more serious than possession. We don’t know the form that the images took, but the fact that it was in the context of voyeurism means that we have a good idea.

Looking at the grid, this case falls in to ‘Production – Category C’. The starting point is 18 months, with a range of 1-3 years.

The aggravating feature is the breach of trust and the number of cases. This would put it, tentatively, at the 2-2½year mark, probably at 2 years given the likely nature of the images.

There was a plea, probably at the earliest opportunity, which would give a sentence here of about 1½ years.

 

Voyeurism

This is at page 143. On a strict application, this is not ‘raised harm’, but is certainly ‘raised culpability’ given the planning, recording and breach of trust. It feels that it should be raised harm, because of the fact that this was done at a hospital, but this is probably covered by the ‘breach of trust’ in the culpability part.

So, that would be Category 2, starting at a Community Order, with a range of up to six months. We would put it right at the top of that, so six months before credit for a plea. It has to be remembered that the maximum sentence is 2 years.

 

Totality 

Does this mean that the sentence is manifestly excessive? No. Here, you have to look at all the offending together which, we would think, certainly makes it more serious. Whether or not it justifies a sentence of 5 years with full credit is a bit unclear. We would say that the Judge is a very good one who certainly knows his stuff. So, whilst there may be an appeal, we would be surprised if he got it completely wrong.

One thing to note is that the Extended Sentence only applies to the child pornography offences. So, whilst it might make more sense to have consecutive sentences, as you can’t attach an extended licence to the voyeurism offence, this can cause huge problems.

We don’t know anything about the extreme image, but it is unlikely to have added much, if anything, to the sentence.

 

Dangerousness

Another reason to see the sentencing remarks would be to see why the Judge found him to be dangerous. This is often obvious, but is not necessarily in this case. Dr Yeoh was said to be “a high risk to the public“, and it would be useful to know more about why this conclusion was reached.

 

Conclusion

This is an interesting case which was a very difficult sentencing exercise. We would certainly like to the see the Sentencing Remarks to see why the Judge came to the conclusion that he did. It may well be that there is an appeal, which should also give us some more details, even if it is unsuccessful.

Man jailed for raping his 12 year old brother

Introduction

On 25th November 2014 a man (unnamed, in order to protect the victim’s identity) aged 23, was sentenced having pleading guilty to raping his brother. There aren’t many details, but it seems that this occurred last year at the boys house.

The boys’ parents were alerted by the noise of the attack but the defendant warned his brother he would be “beaten up if he told what had happened,” the court heard.

That is pretty much all the details that we have. We do know that the man had “had thoughts of raping [his] brother on a previous occasion but that [he] blocked them out using cannabis and alcohol“.

 

Sentence

The Judge found that the man was dangerous and passed an extended sentence. This is perhaps not surprising in the circumstances. The sentence was 7 years, with a 3 year extension period. Because this is an extended sentence, he will have to serve a minimum of 2/3 of the 7 year sentence, before being released automatically.

This is a case where the Sentencing Guidelines for sexual offences apply. The guidance for rape of a child under 13 is at page 27. We don’t have any of the facts, but given credit for a plea this would indicate a starting point of about 10 years.

It is a good example of when an extended sentence should be imposed. It also shows the impact of an extended sentence. In terms of the amount of time to be served, it is equivalent to a ‘normal’ sentence of 9 1/3 years.

 

Photo from the Mirror

Michael Shrimpton, barrister and part-time Judge, convicted of bomb hoax

Introduction

It’s very unusual for a part-time Judge to go to prison (not unheard of though). On 25th November 2014 Michael Shrimpton a barrister who has previously sat as a part-time Immigration Judge, took a step closer to joining that illustrious club when he was convicted at Southwark Crown Court of 2 counts of making a bomb hoax.

Sentence has been adjourned until 6th February 2015, with the Judge directing a psychiatric report be prepared on Mr Shrimpton

 

Facts

The case is a bizarre and strange one, as can be seen by his claim that “German spies were plotting to target the Queen with a nuclear warhead at the London Olympics“. The two counts related to when he told “a close colleague of former Defence Secretary Philip Hammond that a nuclear device was planted in a hospital in east London.” The second count related to the next day when “he telephoned the offices of David Lidington MP and repeated” his claim about their being a nuclear bomb near the Olympic site.

Mr Shrimpton has made a variety of claims that, had they not come from someone who seemed quite an ‘establishment’ figure, would probably have been dismissed out of hand. For example, in evidence he said “I admit that the stuff I deal with is bound to sound strange, high falutin’, incredible and fantastic. It’s my world, welcome to my world.”

We won’t repeat it all here, but the full details are worth a read. In a (possibly unwise) bid for open justice, Mr Shrimpton has published his defence statement. This also includes the line of questioning that he would be following in cross-examination.

 

What’s the offence?

It is (we assume) the offence under s51(2) Criminal Law Act 1977 of communicating a bomb hoax – “A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.

The maximum sentence is 7 years in prison. There are no guidelines, or guideline cases, but the CPS website has an overview of the aggravating and mitigating features and suggest that there is normally a custodial sentence of 1-4 years.

We would not necessarily agree with that – it is the sort of case where sentences can vary wildly and are very fact specific. Especially so given that there are often mental health issues associated with people who commit this offence.

 

Is Mr Shrimpton still a barrister?

Seemingly so, looking at the Bar Directory. This is confirmed by the Bar Standards Board. Interestingly, for those that are aware of what QASA is, Mr Shrimpton is one of the very few barristers who have signed up to the scheme (giving himself top marks as a Level 4 advocate).

It seems that there is no record of any disciplinary hearings. This is slightly strange as the Daily Mirror reports that “Shrimpton holds one previous conviction for possession of indecent images of children. A memory stick was found in his house search containing the vile pictures and has been the subject of separate proceedings at magistrates’ court“.

If that is so, then there would have been a disciplinary hearing. The BSB only has findings going back to 2002, but it’s unlikely that there would have been a memory stick before that date.

In any event, it seems that this was from 2012 (again though, it’s a bit confusing). Mr Shrimpton denies the offence, saying that “secret service agents planted child porn on his computer memory stick in a plot to discredit him“.

It seems fairly clear that he is not sitting as a Judge anymore, although there is no record on the Judicial Conduct Investigation Office website that has disciplinary findings going back to 2009.

So. We are none the wiser, but it likely that a disciplinary hearing will be commenced at some point. After all this, it is certain that he won’t be a Judge again, and very likely that he won’t be practicing as a barrister again anytime soon.

Photo from the BBC

Lewis Daynes pleads guilty to murdering Breck Bednar

Introduction

Lewis Daynes, a 19 year old computer engineer (18 at the time of the offence), was due to stand trial for the murder of Breck Bednar, a 14 year old boy who was found stabbed to death after stating that he was going out for a sleepover with a friend.

Details are a bit unclear, all we know are that they appear to have met playing an online video game, and that after Breck’s death “police became aware of a Facebook post saying the schoolboy had met someone “he thought wanted to be his friend”.

The sentence has been adjourned to next year (where we will come back and have a look at it). The only other detail (which is important – see below) is that “the prosecution’s case [is] that the murder “involved a sexual, sadistic motivation.”

 

What will he get?

The only sentence for murder is life imprisonment (or, as it will be called in this case because of Mr Daynes’ age – detention for life). The question for the Judge will be what tariff - minimum period – Mr Daynes will be required to serve in prison before he can be considered for release.

The prosecution have set out their stall – the murder has a sexual motive. If the Judge accepts that, then the starting point will be 30 years. Otherwise (probably) 15 years. We say ‘probably’ because it may be that there was a knife brought to the scene, which would give a starting point of 25 years.

Either way, there will have to be credit for a plea of guilty. In this case (a plea on the day of trial) probably about 10%. Allowance will have to be made for his youth as well. Much will depend on the exact facts, especially whether there was a sexual motive and whether this was a planned offence.

 

Photo from the BBC

Man pretending to be David Onamade guilty of 20 year ID Fraud

Introduction

There’s identity theft, and there’s identity theft. In a story that would have got the Daily Mail salivating, a man who’s actual identity is still unknown (although he introduced himself to his wife, who was unaware of the deception, as Steven Douglas) was convicted by a jury of various offences relating to false documents and fraud on 24th November 2014.

It is a bizarre story. Mr Douglas (as we shall call him) created a false identity off the back of a real person – David Onamade a Londoner, and used this to get a National Insurance Number. He then got a job as the Director of the ‘Somerset Racial Equality Council’.

He presumably did a good job of it, as there were no complaints or doubts raised during his nine year tenure. It all unravelled last year however when the Charity shut down (it doesn’t seem to relate to any mismanagement by Mr Douglas).

After that, Mr Douglas claimed Job Seeker’s Allowance. The Job Centre then seemingly put two and two together and realised that there were two people using the same number. This would then have lead to investigations which showed that only one person was the real Mr Onamade.

We don’t have the sentencing remarks, but Mr Douglas got a 9 month sentence. Having spent 13 months on remand, this has already been served. It may be, as the Judge noted, that the UKBA take an interest, but that is the end of the criminal proceedings.

 

Sentence

This would instinctively be governed by the Fraud Sentencing Guidelines. The difficulty here is that we don’t know the amount of money involved.

We do know, however, that for cases of using false identification cards  by people who are not lawfully in the country the sentence after a plea of guilty is 12-18 months if it is used to come into the country (Kolawole [2004] EWCA Crim 3047) or 6-12 months if it is used ‘in country’ (Ovieriakhi [2009] EWCA Crim 452).

It seems here that Mr Douglas/Onamade/John Doe is not lawfully in the UK. In light of that, we would have expected a starting point after a trial of least 12 to 18 months for the false documents alone. Given the lengthy period of the fraud, the use of someone else’s identity and the fraud, we would have expected a sentence of at least 2 years, if not more.

For that reason, unless there are circumstances of which we’re unaware (always possible when going off news reports) this is an extremely lenient sentence. It’s not impossible that we will see an AG Reference.

From the Daily Mail

#rapetruck sticker almosts lands James Hellewell in hot water

On 20 November 2014, a rather disturbing image was doing the rounds on Twitter etc. and it wasn’t long before the Mail, the BBC and other picked it up.

It appears that James Hellewell from somewhere near Leeds had taken a picture of his mother, bound, blindfolded and gagged in the back of his pick up truck, had the image printed and then fixed it to the tailgate of his truck, to create the impression that he was driving around having kidnapped a woman and placed her in the rear of his truck (what a joker, eh?).

Anyhow…as was entirely predictable, someone called the police and Mr Hellewell had a visit from the police:

Ch Insp Steve Palmer said:

“It was clear that a number of people had found the image offensive and had been alarmed and distressed by it being displayed in public.

The registered keeper of the vehicle was traced and spoken to by officers and made aware of the concerns raised and the potential for the continued display of the image to be treated as a public order offence.”

Is that a little over the top? Let’s see…

The Public Order Act 1986 s.5 is the weapon of choice here:

(1) A person is guilty of an offence if he—

(a) [not relevant]

(b) displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Section 6(4) clarifies the requisite mental element of the offence:

A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

If there were a prosecution under s.5, one wonders whether it could truly be said that the sticker was “threatening, abusive or insulting” (probably not) – and perhaps also whether Mr Hellewell was aware that his behaviour may be disorderly (I suspect he probably was).

When contacted for a comment, he said: “”It’s boring now, it’s removed and I’ve apologised, get a grip.”

Comment

Some will no doubt have found this amusing, others, it appears were concerned and apparently suffered “distress”. Either way, a prosecution would seem way over the top and it appears that the response of the police in this instance – to go and have a quiet word – was more rational (though we question whether the mention of a public order offence was a) necessary and b) accurate.)

Image from the Telegraph

Jack Cottle gets 8 months for driving onto Brands Hatch racing circuit

 

On 14 June 2014, Jack Cottle deliberately drove a white VW Polo – not his vehicle – onto the race track at the Brands Hatch circuit during a four-hour event. The incident was captured – helpfully – by a passenger (see the YouTube video). The race had to be stopped, resulting in 30 minutes of the event being lost, at a cost of £4,200 to the organisers.

Cottle claimed he had been “dared” to do it.

He was arrested and prosecuted, pleading guilty to public nuisance on 10 October at Maidstone Crown Court, and the matter was put back for sentencing. The judge said:

“Motor racing is an inherently dangerous sport and quite plainly it was a matter that put persons at risk for their lives.

“You must understand that the court will be considering a custodial sentence.”

The offence

Public nuisance is a common law offence with a maximum penalty of life imprisonment. Examples of what constitutes a public nuisance can vary wildly, however probably the most notable recent example is that of Trenton Oldfield disrupting the Oxbridge Boat Race. He received a custodial sentence of 6 months’ imprisonment.

Archbold states:

“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects….This definition was approved in R. v. Rimmington; R. v. Goldstein [2006] 1 A.C. 459, in which the House of Lords held that the definition was clear, precise, adequate…”

Boasts

In the interim between the event and his sentence earlier this week, Cottle boasted online about the incident. He claimed it was something he had always wanted to do, that it was “quite funny” and that he would like to do it again.

Sentence

On 17 November 2014, Cottle was sentenced to eight months’ imprisonment. Not so funny now eh?

In mitigation, it was said that Cottle “”lacks maturity and is easily led” and that he was sorry for his actions.

The judge commented:

 “With your girlfriend in the front passenger seat and your other friend in the back filming, you drove your girlfriend’s car on to the track.

“You drove a full circuit and I have seen the films with sound commentary showing your girlfriend was hysterical and screaming and begging you to stop, and also protesting it was her car.”

He continued:

“It’s quite clear your actions were premeditated. It was deliberate, it was inexcusable.

“Your deliberate behaviour endangered not only your own life it but those of your passengers, the competitors, the emergency services, the marshals, stewards and anyone else who was nearby.

“The sentence must reflect the need to deter others who might be tempted to act as you did.”

The judge declined to impose a disqualification from driving.

Comment

Cases of public nuisance are typically difficult to sentence; what is required is to identify very specifically the harm caused by the individual’s actions. In this case, the harm is obvious. The danger to himself, his passengers, the drivers of the vehicles in the race, the marshals and emergency services is manifest. Additionally, the disruption caused to the race and the financial loss to the organiser is not to be overlooked. The selfishness and stupidity of Cottle’s actions therefore result in a high level of culpability. Additionally, Cottle bragging about the offence is likely to have been considered to have been an aggravating factor.

As to whether such an offence warrants a custodial sentence, this case is likely to divide opinion. Whilst I see force in the argument that there is a need for deterrence (the YouTube video having been watched over 2.3m times) and to avoid “copycat” incidents is important. However, one wonders whether Mr Cottle would have learned his less with a suspended sentence with some punitive requirements (curfew, unpaid work etc.) and the media spotlight highlighting just how much of an idiot he really is. Is it necessary to send him to prison? Probably not. Was it inevitable? Almost certainly.

Photo from the BBC

Nafees Hamid : neurosurgeon gets 16 years for sex attacks

Introduction

Between January 2012 and June 2013 Nafees Hamid, a Birmingham based neurosurgeon, sexually assault six of his patients. He was convicted on 17th November 2014 of nine offences against these six woman and, on 18th November, was sentenced to 16 years’ imprisonment.

Facts 

As usual we are going off the news reports alone. Given the sentence, we hope that the full remarks will be published, so that we can understand why the sentence was passed.

The defence was (to some) that the alleged assaults did not happen and (to others) that there was a proper clinical need for the touching.

It’s a bit vague, but it seems that on the pretext of a clinical examination, the doctor digitally penetrated the six woman (thanks to the ‘Birmingham Updates’ website for further information).

Comment

Firstly, the BBC got the offences wrong. They called them ‘indecent assaults’, but that was actually abolished as an offence in 2004, and replaced by a number of offences, one being Sexual Assault. In this case, it seems that the offences charged were Assault by Penetration.

This makes much more sense as the maximum sentence for Sexual Assault is 10 years, so a sentence of 16 years would be (whilst lawful as there could be consecutive sentences) extremely high. The maximum for Assault by Penetration is life imprisonment.

Here, the Sentencing Guidelines apply – see page 14. Here it is arguable that the case is Category 2 Harm. This would be on the basis that, as a patient, the victims were “particularly vulnerable due to personal circumstances“. It seems to me that it falls more naturally into Category 3 however.

In relation to Culpability, it’s more straightforward. For a doctor to abuse his patient is a huge abuse of trust, so this is certainly Culpability A. This is part of the reason that I would put it as Category 3 – to increase the ‘Harm’ to Category 2 because the victims were patients is ‘double counting’.

For Category 2 (with Harm A) the starting point (after a trial, as Mr Hamid had) is 8 years, with a range of 5 to 13 years. For Category 3, the starting point is 4 years, with a range of 2 to 6. Why  is the sentence then four times the starting point?

There are two features here – firstly, the fact that the attacks were perpetrated by a doctor is an aggravating feature, possibly over and above the breach of trust. To my mind, that cannot take it outside the sentencing range, but can take it above the starting point to about 5 years.

The second point is that there are multiple victims. This needs to be reflected in a longer sentence, however you can’t just multiply the correct sentence by six to get the ‘right sentence’. The Judge is entitled to increase the sentence to reflect this however.

Even so, the sentence seems very high and I would expect an appeal (although in the current climate, I wouldn’t rate his chances). A sentence more in the line of 8-10 years would be more what one would expect in the circumstances.

Photo from the Standard

Tania Clarence – Hospital Order for Manslaughter

Introduction

We covered the case of Tania Clarence – a mother who killed three of her four children earlier this year – when the CPS accepted a plea of guilty to manslaughter last month.

On 18th November 2014 she was sentenced by Sweeney J to a Hospital Order.

 

Sentence

We said that the sentences for this offence are wider than most, and that this would be a difficult sentencing exercise. The Judge has published the sentencing remarks, which are very well constructed – definitely worth a read.

He said that it was clearly a case of manslaughter (not murder). The psychiatric evidence showed that Ms Clarence was “mentally ill at the time – suffering from a major depressive episode (which is a recognised medical condition) which substantially impaired your ability to form a rational judgement at the time, and is the explanation for your carrying out the killings“.

Against that backdrop, the Judge concluded that she was not ‘dangerous’ within the meaning of the Criminal Justice Act 2003. Further, for similar reason, if a Hospital Order were to be made, then it was not necessary to have restrictions on it.

That left the Judge with the choice of a prison sentence or a Hospital Order. The Judge analysed Ms Clarences’s history and set out in detail what lead to the position of her carrying out the killing. He concluded that her culpability was very low. For those reasons, which seem entirely right on the analysis that the Judge conducted, Ms Clarence was made the subject of a Hospital Order.

How long she will spend in Hospital is impossible to say – it depends on how well she responds to treatment. It could be months, it could be many years. It will probably be somewhere in between.

 

Photo from the BBC

Aliyah and Lacquan Weekes detained for ‘revenge rape’

Introduction

Whilst a woman cannot rape another person, it is possible for her to be found guilty of rape (in legal speak as a ‘secondary party’ – aiding and abetting the ‘principal’ – the man who carries out the rape).

This is very rare indeed however – no exact figures are available, but no more than one or two women a year we think. One example was given on 13th November 2014 when Aliyah Weekes was sentenced for rape, along with her brother Lacquan and an unnamed 16 years old.

Facts

The facts do not make pleasant reading. It seems that Aliyah was concerned that the 15 year old victim had been ‘telling secrets’ about her. This seems to relate to a previous attack that Aliyah had committed against another individual. In revenge for this, Aliyah arranged for her brother to rape the victim as a punishment, making this clear by saying ‘snitches get stitches’ before the attack started.

After that, “She also threatened to make the victim “do a line-up” – street slang for giving oral sex to multiple men – and warned her she would be hurt if she did not comply“. It seems that the whole incident lasted for about an hour.

Sentence

We don’t have the Sentencing remarks, but we hope in a case such as this that has generated such public interest they will be published. We do know that Aliyah got 4½ years detention and Lacquan 5 years.

There aren’t any details of what the 16 year old defendant did. He got an 18 month Youth Rehabilitation Order, so it is safe to assume that he was very much on the periphery.

For the siblings, the starting point is the Sentencing Guidelines (look at page 10). I would have said that it would be Category 2 harm, not least on the basis that the circumstances constitute “Additional degradation/humiliation“. However, looking at the sentence, this would give a starting sentence double what was received, so we imagine that the Judge took it as being Category 3.

It is clearly Culpability A due to the planning and the involvement of more than one person. This gives a starting point of 7 years, with a range of 6 to 9.

Why then the seemingly ‘light’ sentence? There was no plea of guilty, but the main mitigation was the age of the two – 19 and 18 respectively at the time of sentence. This, along with the other personal circumstances, may explain why a sentence seemingly below the guidelines.

We have to say that, despite their ages, this sentence seems an extremely merciful one. It may be, of course, that there is more to it than meets the eye, but in the current climate we would not be surprised if the AG was sniffing around this one
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