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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Taylor, R. v [2025] EWCA Crim 450 (04 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/450.html Cite as: [2025] EWCA Crim 450

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT PORTSMOUTH
HHJ ASHWORTH CP No: 47WC2498323

		Royal Courts of Justice Strand London WC2A 2LL
		4 April 2025

LORD JUSTICE SINGH:

Introduction

1. The Registrar has referred this application for leave to appeal against sentence to the full court and granted a representation order for counsel. There was a bail application but that has not been pursued.
2. On 20 September 2024 in the Crown Court at Portsmouth the applicant pleaded guilty to two offences. On 30 January 2025 she was sentenced by His Honour Judge Ashworth as follows. On count 1, which was an offence of being in charge of a dog called Ziggy which caused injury while dangerously out of control in a public place, contrary to section 3(1) and (4) of the Dangerous Dogs Act 1991 there was a sentence of 27 months' imprisonment. On count 2, which was a similar charge in respect of a dog called Daisy, there was also a sentence of 27 months' imprisonment made concurrent. Accordingly the total sentence was 27 months' imprisonment. The applicant was disqualified from having custody of a dog for 10 years.
3. There was a co-defendant, Matthew Roberts, the applicant's partner who had also pleaded guilty to both counts. He was sentenced to a suspended sentence order of 12 months' imprisonment suspended for 18 months with rehabilitation activity and unpaid work requirements.

Factual background

4. On 18 August 2023 Mr Victor Franklynn, who was in his seventies, was walking his dog on a normal walk near where he lived in Bognor Regis. Mr Franklynn did not remember much of what happened but CCTV showed that as he was coming up towards a row of parked cars two Rottweiler dogs appeared from across the street. They were off lead and no owner was present. They seemed to have escaped from the garden where they were residing and the owners were not home. They then approached Mr Franklynn and his dog.
5. The immediate target of their focus and attention was his dog. Mr Franklynn tried to protect himself and his dog and tried to fend off the Rottweilers. During this he was caused to go to the ground and at one stage he dropped his dog's lead. His dog moved away from the scene but remained around the corner and was found by another resident. The attack in relation to Mr Franklynn went on for about 11 minutes which was largely captured on CCTV, although he is often out of shot. He started off fully clothed. At times he was able to sit up and was trying to strike out at the dogs. He ended up largely not clothed at all.
6. Mr James Jones was inside his house when his wife alerted him to a commotion. He looked over the fence and saw there was a dog attack going on. He then took out a large spirit level and went out and effectively protected Mr Franklynn. The dog expert who looked at the case said that undoubtedly if it had not been for Mr Jones' assistance the dogs would have carried on and it is likely that this would have ended up in the death of Mr Franklynn. Mr Jones was able to whack the spirit level on the ground which deterred the dogs to some extent and they backed off.
7. Another local person came by in a car that was able to block off one of the paths and then the presence of more people meant that the dogs retreated.
8. Police officers and firearms officers attended and shot both dogs. One of them was dispatched in the public area and the other managed to go home after being shot and was dispatched in the garden.
9. An ambulance attended Mr Franklynn who had suffered extremely serious, life-threatening and life-changing injuries. These required amputation of his right arm at the elbow, his left leg above the knee and his left middle finger. He was in hospital for more than four months.
10. The dogs had been left insecure outside in the garden of the property whilst Roberts was at work and this applicant, who was then heavily pregnant, had left the house to go to a hospital appointment.

Sentencing framework

11. The maximum penalty for an offence of this type is five years' imprisonment. The Sentencing Council has issued a definitive guideline on offences of this kind with effect from 1 July 2016.
12. The harm caused in this case was within Category 1 because there was serious injury. There was and remains a dispute as to the categorisation of culpability. The guideline provides that Category A high culpability will include factors such as the following:

Failure to respond to official warnings or to comply with orders concerning the dog.

13. The guideline provides that medium culpability Category A will be where, for example, there is:

failure to respond to warnings or concerns expressed by others about the dog's behaviour.

14. The guideline recommends for a Category 1A case a starting point of three years' custody with a range of two years six months to four years' custody. If the offence falls into Category 1B the guideline recommends a starting point of one year six months' custody with a range of six months to two years six months' custody.
15. Also of potential relevance is the guidance on the imposition of community and custodial sentences which had effect from 1 February 2017. In particular it is important to note that the guideline provides that even where the custody threshold has been passed, the sentencing court still needs to consider carefully whether it is unavoidable that there should be an immediate sentence of custody.
16. Factors indicating that it would not be appropriate to suspend the custodial sentence are where the offender presents a risk/danger to the public, where appropriate punishment can only be achieved by immediate custody and where there is a history of poor compliance with court orders. Factors indicating that it may be appropriate to suspend a custodial sentence are where there is a realistic prospect of rehabilitation, where there is strong personal mitigation and where immediate custody will result in significant harmful impact upon others. It is also to be noted that the maximum sentence of custody which is capable of being suspended is two years.

The sentencing process

17. The applicant was born on 3 April 1997 and is now aged 28 but was 26 at the time of the offences and 27 at the date of sentence. The applicant had one previous conviction for an immaterial road traffic matter.
18. The sentencing court had, as this court does, a pre-sentence report and a victim personal statement, as well as CCTV footage available to be viewed on Egress. This court has also had the advantage of a prison report which assists in giving an up-to-date position on how the applicant has been doing while in custody.
19. In passing sentence the judge noted that there had been a series of reports about the dogs and their behaviour over the previous two months or so before the offending. He went through those in detail. It is clear that there had been not only written communications but words of advice given by a police officer on 29 June 2023 and a visit on 12 August by an official from the local authority. Initially the applicant had told that official that the dogs did not in fact belong to her, although later she accepted that one was hers.
20. It is important to note two particular aspects of what the judge said in his sentencing remarks where he dealt with these matters in detail. The first is that on 29 June, as recorded at page 2E to F of the sentencing remarks, there was a person from Sussex Search and Rescue for Lost Dogs who attended and offered support to the applicant. The judge stated the following:

"You said to her the dogs had got out of the window. They do not roam, you said, but they can jump the fence."

21. The other conversation and communication that should be noted in this context are that the judge recorded the following at page 3B to E of his sentencing remarks:

"[On] 18 July [which was one month before the offences] the last thing that had been said to you by [an official from the local authority] was:

'I have to reiterate, your dogs [we would emphasise plural] must be kept under control and must not cause any further issues to neighbours, residents and members of the public.'"

22. The judge recorded that the applicant's response was to say: "That's fine."
23. Accordingly, on the basis of that and the other matters which he had set out in his sentencing remarks, the judge concluded:

"I am sure that you had been officially warned that the dogs were a risk and that you had to secure them and keep them under control."

24. The judge then described the scene which ensued on the date of the offences as "a scene of utter horror and terror". The judge noted the applicant's age and although she had some previous convictions he put them to one side because they were not material.
25. The judge placed this into Category A culpability because of the applicant's failure to respond to official warnings. It was obviously Category 1 harm because of the horrendous injuries caused to Mr Franklynn. But further, the judge observed there were aggravating factors as mentioned in the guideline. This was a sustained attack resulting in significant practical and financial effects on the victim's relatives and carers. On the other hand, the judge noted that there were mitigating factors. The applicant was remorseful. She was the mother of five very young children and was the primary carer for those children.
26. The judge said that the starting point for the offence in accordance with the definitive guideline is three years' custody with a range of two-and-a-half to four years. He said that balancing out the aggravating and mitigating features had there been a trial the sentence would have been one of three years' custody. The applicant was entitled to a reduction of 25 per cent because of the stage at which she entered her guilty pleas. Accordingly, the sentence was one of 27 months' imprisonment.
27. In the case of Mr Roberts, the judge observed that his culpability was lesser because there had not been official warnings given directly to him and spurned in the way that they had been by this applicant. For that reason the judge felt able to impose a sentence of 16 months reduced to 12 months in view of the guilty pleas. He felt able to suspend that sentence for a period of 18 months.

Grounds of appeal

28. On behalf of the applicant Mr Lamb advances the following grounds of appeal. First, he submits that the judge erred in placing the offending into category A culpability by deciding that the opinions and advice given to the applicant amounted to "official" warnings or "orders" concerning the dogs when they were at home. In developing that submission before this court today, Mr Lamb has emphasised that they did not relate to what might happen when the dogs were away from their premises and in particular the point had been made that they should be kept on a lead. He submits that the applicant and her partner were of the view that the fencing would be adequate to contain their dogs. It is difficult to reconcile that with what the applicant is recorded to have said, as mentioned in the sentencing remarks which we have quoted earlier and in particular that she was aware that they were capable of jumping the fence.
29. The second submission that Mr Lamb makes is that the judge erred in not considering whether an immediate custodial sentence was truly necessary in all the circumstances of the case and not properly considering the significant effect of an immediate custodial sentence on the applicant's partner and their five young children.
30. In developing the first ground, Mr Lamb submits that the communications referred to by the prosecution in the court below did not amount to official warnings or orders and did not relate to when they were out walking, rather than being on their property. He also submits that it was merely the accident of their living arrangements which meant that any warnings about the dogs would be made to this applicant rather than to her partner because he worked away from home most of the time. At the hearing before us today, Mr Lamb fairly acknowledged that that point is two-edged because it might be said that the judge was able to be more lenient towards Mr Roberts because he did not receive warnings directly but that does not necessarily reduce this applicant's culpability because she did receive the warnings directly.
31. Mr Lamb also submits that the pre-sentence report showed that the applicant was clearly and sincerely remorseful for the injuries caused to Mr Franklynn. He had submitted before the Crown Court that although Mr Roberts had a full-time job to go to, he would not be able to take that job if he were to be the sole carer for the five children.
32. Before the judge, Mr Lamb had made the submission that the judge should not follow the sentencing guideline because it would be contrary to the interests of justice to do so, by reference to section 59(1) of the Sentencing Code. He had also submitted that if the judge was not persuaded of the correct categorisation for culpability he should consider whether it was unavoidable for the sentence of imprisonment to be imposed by reference to the definitive guideline on imposition. The fundamental difficulty with that argument is that the sentence could not be suspended if it was above the period of two years' custody.
33. In our judgment, the judge was entitled to place this offending into Category 1A. The phraseology of the guideline, in particular where it refers to "official warnings", must not be read as if it were in a statute. These words are to be read and applied in a practical and common sense way. The reality of the history of this case was that on many occasions the applicant had had brought home to her the need to keep the dogs under control. Those warnings were conveyed to her by people who were in a position of official authority, for example officials of local authorities or a police officer.
34. The judge was then entitled to take a notional sentence after trial of three years' custody. Given that he could not give credit for the guilty pleas of more than 25 per cent because they were not entered at the earliest reasonable stage but only at the plea and trial preparation hearing stage. It was inevitable that the sentence would be above two years' custody.
35. The guidelines issued by the Sentencing Council today reflect the importance of the right to respect for family life in Article 8 of the ECHR and the judgment of this court in R v Petherick [2012] EWCA Crim 2214, [2013] 1 CrAppR (S) 116, see also R v Thompson [2024] EWCA Crim 1038, in particular at paragraph 21 where the principles laid out in Petherick are summarised.
36. Each case must depend on its own facts. On the facts of Thompson this court felt able to reduce the sentence that had been imposed in the Crown Court not because the sentence was wrong at the time but in the light of further information that had become available to this court. Even then this court concluded that a sentence of immediate custody was unavoidable on the facts of that case.
37. Bearing in mind the importance particularly of the impact of this sentence on very young children, we have taken into account everything that is before the court, including the more recent information which was not available to the sentencing court. In particular, we have seen a letter from Mr Roberts dated 24 February 2025 in which he sets out the real difficulties caused to the family because he has to work full-time as well as looking after the young children, without the support now of this applicant who had been the primary carer. We have also seen emails from the applicant's mother dated 4 March 2025 and 3 April 2025, and the discharge certificate relating to treatment which she has received recently in hospital. Our sympathies of course go out to anyone who finds themselves in these difficult situations. Nevertheless the court is unable to say that the sentence passed in this case was arguably wrong in principle or manifestly excessive. In all the circumstances and despite the undoubted impact that the sentence has on very young children, this court is unable to accept the submissions made eloquently on the applicant's behalf by Mr Lamb.

Conclusion

38. Accordingly, this application for leave to appeal against sentence is refused.
39. Before we conclude, we must make one correction to the Crown Court record. It has helpfully been drawn to the court's attention by the Registrar that it would appear from the sentencing remarks that no surcharge was imposed in this applicant's case, although it does appear to have been imposed on Mr Roberts. Despite that, a surcharge is recorded in the Crown Court's records in the sum of £254.
40. Although the surcharge is mandated by statute, it is not imposed automatically and must be ordered by the sentencing judge. As it happens, the amount is also incorrect because the correct amount should have been £258 for sentences of imprisonment exceeding 24 months, where the offence was committed after 16 June 2022. However, the more important point is that since this court is not in a position to be able to consider an appeal, let alone to allow the appeal, this court is constrained in its powers by the terms of section 11(3) of the Criminal Appeal Act 1968 and therefore the surcharge cannot now be imposed. We therefore make it clear for the record that the judge did not impose the surcharge on this applicant and therefore that surcharge does not apply to this applicant.