Neutral Citation no. [2003] NICA 16
Ref:     
CARC3921

Judgment: approved by the Court for handing down
Delivered:
09/05/2003
(subject to editorial corrections)

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN

v

GERARD HUGHES

_____ 

Before: Carswell LCJ and Coghlin J

_____ 

CARSWELL LCJ

   [1]  This is an appeal against a sentence imposed by His Honour Judge McFarland at Belfast Crown Court on 19 December 2002, when he made a custody probation order consisting of four years’ custody, followed by one year’s probation.  The appellant was charged on three counts, threatening to damage or destroy property, blackmail and conspiracy to damage property.  The appellant pleaded not guilty on arraignment, but changed his plea to guilty on 20 November 2002, on the day when the trial was due to begin, although he appears to have indicated about a week before that he was likely to take this course.  The judge imposed the same sentence on each count, to run concurrently.  He stated that if the appellant had not consented to a custody probation order he would have sentenced him to five years’ imprisonment.  The appellant appealed to this court against sentence.  At the conclusion of the hearing we indicated that we would dismiss the appeal and give our reasons in writing at a later date.  This judgment now contains the reasons for our decision.

   [2]  The appellant ran a coal retail business in Belfast for approximately 20 years, but in the period prior to the autumn of 2001 it had declined in profitability and the appellant owed a substantial sum to his major supplier, which the supplier claimed was over £90,000.  The appellant claimed that part at least of the cause of his financial difficulties was that he was paying regular sums by way of “protection” to a paramilitary organisation and supplying its members with coal.  He averred that the sums so extorted from him were very substantial in relation to his business, but the police were sceptical about the amounts actually involved.  

   [3]  The director of the supplier company who dealt with the appellant was known during the proceedings as Witness A.  He had a number of meetings with the appellant in order to try to secure payment of his company’s debt, but without success and eventually the company issued a statutory demand for the amount of the debt.  On 17 October 2001 Mr A’s car was set on fire in his driveway and destroyed.  On 23 October the appellant visited him in his office and demanded that the statutory demand be “sorted out”, indicating that if he did not “the whole lot will go up in smoke”.  The threat made on 23 October was the subject of count 1 on the indictment.  

   [4]  From that conversation Mr A suspected that the appellant was linked with the destruction of his car (though it has not been made the subject of a charge) and contacted the police.  A further demand was served on 19 November 2001 and on 28 November a wreath was left propped up against Mr A’s front door, bearing the legend “In loving memory”.  There was a strong smell of petrol in the porch and it appeared that petrol had been poured into it through the letter box.  On 30 November a mass card, purporting to be signed by “The Boys”, was sent by post to Mrs A.  The appellant contacted the police again and arranged to meet the appellant on 3 December.  

   [5]  On that date he met the appellant as arranged, having on his person a concealed tape recorder, on which their conversation was recorded.  During the conversation the appellant said that he could guarantee that he could get the threats called off.  He was paying protection money and averred that if the debt was not cancelled he would lose his house.  He said at one stage:

“Well, I can get it called off E---.  You call the debt off and I’ll call the boys off.  It’s as simple as that.”

He went on to say that if he lost his house A would then lose his house.  He stated:

“That was their words.  They also told me that you have a boat.  They’ve also told me you’ve a son.”

Later he said:

“E--- I’ll tell you now you’re lucky it wasn’t you that was covered in petrol ‘cos that’s what they were going to do.”

  He then said:

“The boat was actually next to go and then the son eh they were going to target the son next.”

He told A that he could get it called off and guaranteed that “if you get it called off I’ll get it called off”.

   [6]  When the appellant was arrested and interviewed by the police he at first denied any involvement with the threatening acts or making any threats to A.  When the tapes of his telephone conversation with A and his meeting with him on 3 December were played, he admitted his involvement, but attempted to distance himself from the acts committed against A and his family, making out that he did not know what the perpetrators were doing and that he attempted to deter them.  He made the case to the police and in court that the paramilitaries were pressing the matter to get his debt called off, so that he could continue in business and keep on paying substantial protection money to them.  He admitted that he would be expected to make a donation to the organisation if they had the debt called off.

   [7]  The appellant is now aged 47 years.  He has a criminal record going back to 1979, all related to road traffic offences and offences in respect of his business vehicles.  Before trial he raised some £85,000 to settle the debt to A’s company and also discharged other substantial indebtedness.  The probation officer who prepared the pre-sentence report considered that he had learned valuable lessons from the incident and the likelihood of re-offending is low.  The matter has had a considerable impact on his family, who have been supportive, and his daughter’s boyfriend has been managing the coal business.  The probation officer expressed the opinion that the appellant will need support after his release from custody “to help him to resettle in the community” and that a probation order would also develop his victim awareness and help him to consider his financial circumstances.

   [7]  In his sentencing remarks the judge enumerated a number of aggravating features, the amount of money involved, the appellant’s close personal involvement with the threats, the length of time that the persecution of the victim and his family went on, the circumvention of the due process of law and the role of the paramilitaries, whom he described as “a cancer in this society” which appeared to be getting worse.  He took into account in the appellant’s favour his plea of guilty, the difficulty with which he was faced, the impact on his family, the fact that his record related only to road traffic matters, the effect on the appellant’s life of his changed financial circumstances and the fact that his health had not been good.  Having examined some authorities to which he was referred, he concluded that a long custodial sentence was required.  As we did, he found little enough support in the pre-sentence report for making a custody probation order, but accepted the probation officer’s opinion in reaching his decision.

   [8]  Mr Cinnamond QC for the appellant submitted that the judge had not given enough credit for the mitigating factors and that the sentence of an equivalent of five years was out of line for blackmail cases.  He stressed that the appellant was not connected with or acting on behalf of the paramilitary organisation and that the extortion was not being carried out for the benefit of that organisation.  He relied in particular on the decision in R v Hanratty, in which a car dealer who was owed money employed INLA to collect it.  The member of the organisation who threatened the victim was sentenced to two years, while the car dealer was given a suspended sentence of two years.

   [9]  We do not consider that that decision is a guide to the level of sentence required in the present case.  From his own representations to the victim the appellant was very close to the organisation and we share the judge’s view that he had a considerable degree of control over the acts which they would carry out.  It was he who was making the threats directly to the victim and he was deeply involved in the conspiracy to damage his property.  The judge quite justifiably condemned the paramilitary organisations as a cancer in our society and their extortion activities, which society must face and eliminate.  The courts will play their part in imposing severe deterrent sentences on those who are convicted of such offences, which requires the help of courageous citizens.  We would echo the remarks of  Scott Baker J in R v Cioffo [1996] 1 Cr App R (S) 427, where he stated at page 429:

“Blackmail is always a serious offence.  As has been said by this Court in the past it preys on the soul of the victim, in this case not only the victim but his family too.  Deterrent sentences have to be passed by the courts when those guilty of these offences are brought to justice.”

   [10]  Examples may be found among the reported authorities of sentences for blackmail ranging from three years (R v Hoey and Sherwood (1992) 13 Cr App R (S) 177) to 17 years (R v Witchelo (1992) 13 Cr App R (S) 371).  The breadth of the range underlines the correctness of the remark of Sachs J                         in R v Darling (1994) 15 Cr App R (S) 855 at page 856 that blackmail cases vary infinitely and that it is important to have regard to the facts.  Mr Cinnamond referred to the decisions in this jurisdiction of R v Robinson and R v Officer, both of which were mentioned by the judge, and sought to distinguish them on the ground that in each of these cases the threats were made directly by members of paramilitary organisations or on behalf of such organisations, so that the sentences of six years contained an element of deterrence of paramilitary activity.  A more direct analogy may be found in R v Logue (2001, unreported), in which the defendants made death threats to the staff of post offices in order to extort money.  The trial judge Nicholson LJ stated that he went on the assumption that there was no paramilitary organisation involved.  On a (last-minute) plea of guilty the main perpetrators were each sentenced to five years and withdrew their subsequent appeals.  In R v Locke (1998, unreported) a sentence of six years imposed by Kelly LJ after a trial was affirmed by this court.  The appellants had engaged in a protection and extortion racket and had obtained money and cars from the victims under threat of violence, reference being made to paramilitary connections.  

   [11]  We are satisfied that the sentences imposed in the present case fell within the proper range for offences of this nature.  We are also satisfied that sentences of five years for the instant offences were fully justified on the facts of the case, bearing in mind the factors to which we earlier referred.  We share, only in rather greater degree, the judge’s hesitation about the usefulness of a custody probation order in this case.  The probation officer’s recommendation was vague and was not based on a need for support in any specific manner to help to keep the appellant out of trouble after his release and prevent his re-offending, the essential object of the custody probation system.  We consider that when they consider making custody probation orders judges should look for factors which point to a demonstrable need for such support.  We should not ourselves have made such an order on the material before the court, but we are reluctant to upset the exercise of discretion of a trial judge in this respect.  We therefore dismissed the appeal and affirmed the sentences imposed.