R v Louka [2010] EWCA Crim 2015

Appeal against sentence. [Summary required.]

Transcript (Crown Copyright)

The transcript will remain here until it appears on Bailii.

Neutral Citation Number: [2010] EWCA Crim 2015


No: 201002675 A2


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                          Friday, 30th July 2010




                                  B e f o r e:




                               MR JUSTICE TREACY




                             RECORDER OF MANCHESTER




                          HIS HONOUR JUDGE GILBART QC




         (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)









                                  R E G I N A




                                       v




                                  MARIE LOUKA


 











              Computer Aided Transcript of the Stenograph Notes of




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Mr B Walker‑Nolan appeared on behalf of the Appellant








                                J U D G M E N T




                           (As approved by the Court)









                                Crown copyright©



1.     MR JUSTICE TREACY:  This appellant, Marie Louka, appeals against a
sentence imposed on 29th April 2010 at Maidstone Crown Court.  She had
previously pleaded guilty to three offences.  Those were offences of blackmail,
theft and possession of a bladed article.  She received a sentence of 21 months'
imprisonment in relation to the blackmail and concurrent 12 month sentences for
the other two matters.  The court ordered that time spent on remand should be
credited towards that sentence.


2.     The circumstances of the offence are as follows.  The complainant, a Ms
Hodges, owned a dog and over the Christmas period went to Folkestone to visit a
relative.  On 19th December, the dog escaped from the home at which they are
were staying and, although Ms Hodges and other family members searched for the
dog, they could not find him.  They were concerned and distressed about the loss
of their dog and put up posters in the local area, leaving a phone number and
inviting contact.  During the Hodges' stay at Folkestone there was no contact
from anyone and so the family returned to their normal home address.


3.     On Christmas Eve, they received a phone call.  The initial phone call was
made by a man.  It was followed up about a quarter of an hour later by a phone
call from this appellant.  The appellant asked how much Ms Hodges loved her dog
and asked how much she was willing to pay for the return of the dog.  Ms Hodges
explained that she had only been visiting Folkestone and that she normally lived
in Berkshire, at which the appellant commented that Berkshire was a nice place
and that to live there Ms Hodges must have some money.  Ms Hodges explained that
she was in fact a single mother living in a council house and had no money of
her own.  Ms Hodges said that there would be a reward for the appellant but she
wanted to be reassured that the appellant had the dog.  There was discussion
about meeting and at the end of that conversation the appellant was stating that
she did not believe the dog was Ms Hodges and that she intended to keep it.


4.     There were further phone calls received from the appellant later that day
and again the appellant was interested in how much money was to be paid.  The
sum of £50 was mentioned by Ms Hodges, at which the appellant commented "Is that
all?  Then I'm going to keep him".


5.     On 26th December, a further phone call was received from the appellant
and again the appellant was expressing interest in the amount of money she would
receive.  The appellant said that she wanted "serious money" and said that she
was "talking thousands".  There was a further call in which the figure of
£10,000 was mentioned.  An arrangement was made whereby Ms Hodges would travel
and go to Folkestone.  In fact, Ms Hodges had been in contact with the police
and so, when a meeting took place in Folkestone at 2.00am the following morning,
there were police undercover officers in place.  Prior to the meeting, Ms Hodges
received a large number of phone calls from the appellant asking if she was
indeed coming and if she had the money.


6.     When the meeting took place, the police saw a male in the vicinity and
that man was arrested.  That man is due to be tried shortly.  The appellant was
seen at the meeting place with the dog and the officer who approached her
noticed that she was wearing a large jacket and that she would not take her
hands out of her pockets.  When she was detained, a pair of scissors was found
in her jacket pocket, together with three posters of the missing dog.  The
appellant was generally unco‑operative.


7.     In interview, she said that she had the scissors with her because she was
scared of being out on her own in Folkestone.  She went on to explain that she
was on medication.


8.     The dog was returned safely to its owner and it is right to say that it
had not been harmed and there is no evidence before the court to doubt the
appellant's claim that she had properly looked after it whilst it had been in
her possession.


9.     When a plea was tendered to the court, an extensive basis of plea
document was put before the court.  Its terms were accepted by the Crown.  Much
of what is contained in that document is in fact mitigation rather than a basis
of plea but it is relevant and important to the decision to be made in this
appeal.  Accordingly, we shall now read that basis of plea.  It provides as
follows:


"1.  At time of the commission of the offence (22 to 28th December 2008) she was
suffering a manic episode as a result of her bi‑polar disorder as set out in the
report of Mr Ahmed Ismail (Consultant Psychiatrist).  The manic episode left
her, 'suggestible, easily‑influenced and likely to venture into high risk
behaviour'.


2. She was subsequently sectioned under section 2 of the Mental Health Act 1983
on 20th January 2009.  It was noted by Gareth Locke at the time that she
appeared to be suffering delusions, was disinhibited and manic.


3.  She came across the dog outside the Co‑op in Folkestone.  At the time she
took it for a stray (it had no collar or tags) and took it home in order to care
for it.


4. Her then partner [we shall simply identify him as S] saw the missing dog
poster the next day and pointed out that it said reward.


5. She admits making the telephone calls to Melanie Hodges referred to in the
various witness statements.  She made those calls at the instigation of S.  It
was S who suggested extorting money and he who came up with the figure of
£10,000.  She believes he intended to purchase large quantities of heroin and
cocaine with any monies and sell on those drugs to make more money.  The
evidence of Melanie Hodges referring to a male voice directing Ms Louka as to
arrangements for the hand over of monies and meeting is accurate.  The male
voice is that of S.


6. Miss Louka met S in 2006 when they were both at the Arundel Unit (the mental
health unit at William Harvey Hospital).  She began a relationship with him at
that time which ended at the end of 2009 when she made an allegation of rape
against him for which he is currently being prosecuted (at the time of drafting
of this document he has been charged by police and is remanded in custody).


7. During the course of his relationship with S, Ms Louka was abused, beaten,
threatened and raped by S, who was violent and extremely controlling.


8.  At the time of the offence Ms Louka was in fear of S and being threatened
regularly with violence (including on one occasion, having a knife held to her
throat).  Due to her fear of him and her mental health she did not resist his
proposals relating to the commission of this offence.


9.  Ms Louka initially felt unable to make admissions in this matter because she
continued to live with S.  Following the arrest and remand in custody of S for
the alleged offence of rape, Ms Louka has felt able to make full disclosure as
detailed above as to the circumstances of the offence."


That was the basis of plea document accepted by the Crown which was placed
before the sentencing judge.


10.     Ms Louka is now 49 years of age.  Her previous record shows that she was
convicted of theft in December 2009.  Apart from that, there is no other matter
of relevance.


11.     There was available to the sentencing judge a psychiatric report stating
that Ms Louka suffered from Bipolar Affective Disorder, which was in remission
at the time of the report, namely January 2010.  We shall return to that report
shortly.  There was also a pre‑sentence report, which recommended a community
order with a requirement of supervision and which indicated that Ms Louka was
focused on maintaining her recovery from her bipolar disorder and keen to engage
with local mental health services.  The author of that report assessed Ms Louka
as being genuinely remorseful.


12.     The grounds of appeal submitted to us argue that the sentence imposed
was manifestly excessive and that the sentencing judge did not have sufficient
regard to the guilty plea and to the mitigation disclosed in the basis of plea,
together with the contents of the psychiatric report and Ms Louka's personal
history and circumstances.  Mr Walker‑Nolan has developed those matters orally
before us today.


13.     It is right that we observe that blackmail is one of the ugliest
offences in the criminal calender.  The victim of this crime will undoubtedly
have suffered great anguish as a result of this appellant's actions over the
Christmas period 2008.  We in no way minimise that and ordinarily a substantial
custodial sentence will follow for conduct of this sort.  However, this case is
somewhat out of the ordinary.  This appellant, in her mid 40s, left her husband
and five children for S, whom she had met in a mental health unit during a
period of mental illness in 2006.  Their ensuing relationship was unhealthy and
abusive.  S was a significant influence in Ms Louka's life at the time these
offences were committed.  It appears that he was the instigator and directing
mind behind the plan to extort money and its execution.  The psychiatric report
shows that the appellant was sectioned under section 2 of the Mental Health Act
1983, in September 2006 suffering from Bipolar Affective Disorder.  She was
sectioned again in January 2009 some three weeks after these offences after
exhibiting violent behaviour in a supermarket.  Her behaviour at the time was
manic and delusional.  The appellant's condition is described by Dr Ismail as
follows:


"Ms Louka suffers from Bipolar Affective Disorder, currently in remission.  The
disorder is characterised by repeated (ie at least two) episodes in which the
patient's mood and activity levels are significantly disturbed, this disturbance
consisting on some occasions of an elevation of mood and increased energy and
activity (mania or hypomania), and on others of a lowering of mood and deceased
energy and activity (depression)."


The consultant goes on to say:


"It is likely that at the time of committing the offence, Ms Louka was
experiencing a manic episode.  In a manic state a patient is suggestible, easily
influenced and likely to venture into high risk behaviours [the basis of plea
document accepted this].


Ms Louka needs to engage with local psychiatric services and may need indefinite
long term prophylactic treatment for her condition.  She also needs help to
manage her illicit substances taking behaviour."


14.     Unpleasant as this offence was, and not overlooking the taking of the
scissors to the meeting with Ms Hodges, albeit that they were not produced, we
take the view that this appellant's culpability for what occurred was much
reduced firstly by the mental condition from which she was undoubtedly suffering
at the time and secondly from the malign influence of her partner S, who was the
driving force behind these offences.  In addition, we take account of this
middle aged woman's lack of prior conviction and the fact of a plea of guilty,
albeit not at the earliest opportunity.


15.     Her delayed plea may well have been due to S's influence.  In addition
to that, we note the probation officer's opinion that she was generally
remorseful for her conduct.  The present position is that the appellant has been
in custody for five months, the equivalent of a ten month sentence.  She appears
from the information provided to us to have terminated her relationship with S
and now shows insight into her mental condition which was not shown at the time
of her hospital admissions.  In those circumstances, and unusually, we are
persuaded that the sentence imposed for the offence of blackmail and allied
offences was excessive.  Looking at matters as they now stand, we propose to
allow the appeal by quashing the sentences of imprisonment and substituting a
community order with an 18 month supervision requirement.  That requirement is
made pursuant to section 213 of the Criminal Justice Act 2003.  The requirement
means that Ms Louka must attend appointments with the responsible officer, whom
we envisage to be a probation officer, or another person determined by the
responsible officer at such time and place as may be determined by the
responsible officer.


16.     What we have in mind in requiring attendance at appointments made with
the responsible officer or another person is to enable the responsible officer
to assist and direct Ms Louka in the direction of the services which are
available in her locality from a community mental health team or other similar
organisation.  We have in mind the desirability of the monitoring of this
appellant's mental condition and the order which this court makes is designed to
encourage Ms Louka to co‑operate in that respect.  We make plain that this is
not an order pursuant to section 207 of the Act imposing a mental health
treatment requirement, the necessary conditions for that are not in place, but
this is an order which we envisage requiring Ms Louka to meet and consult with a
view to obtaining help and treatment for her condition at the direction of the
probation officer.  That is the effect of the order and we hope that counsel in
his post hearing conference will explain that again to Ms Louka.


17.     Before leaving this case, this court would like to express its
appreciation of the efforts of Mr Gardener, the probation liaison officer at the
Royal Courts of Justice, who has made a significant number of enquiries at the
court's request into this matter over the last few days.

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