R v Dean Gary Yates

MR JUSTICE PEPPERALL: 1 This application concerns an offence of stalking involving serious alarm or distress, contrary to section 4 of the Protection from Harassment Act 1997. Although the offence was committed against a 15-year-old girl, she is now an adult and, for the reasons explained at the end of this judgment, there are now no reporting restrictions in this case. 2 On 11 September 2023, in the Crown Court at Bolton, the applicant pleaded guilty to the stalking offence. Had he not done so, his trial would have started that day. On 27 October 2023, before the same court, he was sentenced to 25 months' imprisonment. 3 The applicant lodged grounds of appeal against conviction some 203 days out of time. The Single Judge, Sweeting J, refused his applications for an extension of time and for leave to appeal. The applicant now seeks to renew his applications before the full court. His renewal application is itself 48 days out of time, and accordingly, the applicant must first seek a 48-day extension of time in which to renew his applications and then a 203-day extension of time for bringing his appeal and leave to appeal against conviction. The Prosecution Case 4 The prosecution's case was that the applicant met the complainant through helping her mother with her garden from 2020. The applicant got on well with the complainant and started helping out in taking her to and from school. He joined the mother and daughter on a family holiday in 2022. Between August and September 2022, the applicant sent the complainant messages in which he revealed his feelings towards her. He was then aged 50 and she was just 15. Family concerns led to the applicant's arrest in November 2022 on suspicion of grooming the child. While no prosecution was pursued in respect of that matter, the applicant was thereafter on bail with a condition that he must keep away from the complainant and her home address. 5 Despite the bail conditions, the prosecution alleged that the applicant engaged in a campaign of stalking the complainant, that he parked his car in the street outside her address with a dashboard camera aimed at the house and followed her on TikTok using different accounts so that his videos would be seen by her. Once the complainant realised that it was the applicant and blocked his account, he simply created a new account and followed her again. 6 The prosecution alleged that the applicant posted a video on TikTok that included pictures of the complainant with a voiceover which ended with the words, "When I kill you, just remember you abused my all. Need to get away". The complainant discovered that video in March 2023 and was understandably scared. She went outside and saw the applicant's car with a camera looking out from the windscreen. The complainant was aware that he had a 360-degree view camera from which the applicant could watch her remotely. A further video threatened to expose the names and addresses of the people who the applicant said had wronged him. 7 The police attended at the applicant's home on 15 March 2023. They seized a handwritten note which appeared to have some of the words spoken in the video. Downloads from his phone revealed dashcam footage and ring doorbell footage of the complainant obtained from a neighbour. 8 The applicant was interviewed under caution. He told police that he treated the complainant like a daughter and would never harm her. He accepted creating the TikTok accounts and that he had mostly posted videos about himself and suicide. He denied being on her street since his arrest and said that he had sold his car to someone else and that they must have been parking it there. The applications 9 The applicant seeks to argue five grounds of appeal against his conviction. a. By ground 1, that the prosecution lied about his voice being electronically changed on a video. b. By ground 2, that he can disprove the prosecution claim that he watched the video material remotely. c. By ground 3, that the prosecution had lied about a Jodie Foster being an informant and that no evidence was produced to prove this. d. By ground 4, that the police submitted false evidence regarding dashcam stills. The applicant seeks to rely on the evidence of a Stephen Arrowsmith who bought his car. e. By ground 5, that his counsel failed to withdraw his guilty plea as instructed; that he had been told that he would receive a sentence equivalent to the time served on remand and that his lawyers failed to submit an appeal. f. In addition, although framed as a ground of appeal against conviction, by ground 6 the applicant complains about the Pre-sentence Report and assertions made by the probation officer. 10 In refusing leave to appeal against conviction the Single Judge said: "Ground 5: Your claim that your counsel failed to withdraw your guilty plea and that you were misadvised regarding sentence suggests your plea was not unequivocal. However, the information before me indicates otherwise. You entered a guilty plea to stalking on a full-facts basis on 11 September 2023. Statements prepared by your counsel and solicitor confirm that you were fully advised prior to pleading guilty. I note that when your solicitor became aware of your concerns about your plea on 12 October, advice was provided to you a week before the sentence hearing. You were advised of your right to vacate your plea. Your counsel advised you on the legal test for such an application and you were informed of the possible outcomes and consequences. You were given time to consider your position, and there is no indication that you were pressured when entering your plea or when considering whether to vacate it. Indeed, your counsel confirms that you indicated you did not want to vacate your plea on the day of sentence, and you did not express a wish to vacate your plea at any point during the sentencing hearing itself. Your solicitor's statement also says that you ‘had admitted to certain aspects of the Crown's case and therefore advised as to the strength of the case as a whole’. The prosecution contends that the evidence as a whole, including the evidence you now challenge, presents a clear and compelling case of stalking that you have not undermined. It is not arguable that your plea was not unequivocal or that you were inappropriately advised regarding its withdrawal. Challenges to the evidence (Grounds 1, 2, 3, 4): – Electronic voice change (Ground 1): You allege that the prosecution lied about your voice being electronically changed on a video. However, you accepted creating a number of videos during your police interview. You stated in that interview that the audio content was ‘straight into a transcriber, and then that will turn it automatically into audio’. The opening for sentence referred to a ‘distorted voice’ appearing on the video. Whether the voice was yours or a digitally created voice does not impact the safety of your conviction, as you admitted creating the videos. These videos, particularly the one containing a death threat at the moment the victim's image appeared on screen, were disturbing, directed at the victim, and clearly designed to cause distress. – 'Jodie Foster' (Ground 3): You assert that the prosecution lied about a ‘Jodie Foster' being an informant and that no evidence was produced. No individual named Jodie Foster was a witness in the case. There was, however, a witness named Jodie Openshaw who provided statements on 15th March 2023 and 18th May 2023. She confirmed making a complaint to the police on 22nd October 2022 regarding your relationship with the victim, and both of these statements were served as evidence. This evidence does not render your conviction unsafe. – Dashcam evidence (Grounds 2 & 4): You allege that the prosecution lied about you remotely watching the victim via dashcam on your mobile phone and that the police submitted false evidence regarding dashcam stills. The prosecution served substantial evidence concerning the dashcam being used to monitor the address. This included: (a) A statement from Kirsty Devaney (the victim's mother) exhibiting photographs of your car and dashcam after you were placed on bail conditions on 4th November 2022, preventing you from being within 200 yards of the victim's address. (b) Evidence from the Police National Computer confirming the vehicle was registered to you throughout the relevant period, and a V5 form was seized from within the vehicle. (c) An extraction report from your mobile telephone which evidenced images of the victim's address saved to your handset, dated 13th November 2022, and a video from the dashcam dated 11th March 2023, showing you (your voice recognised by PC Dean Farrow) parking your car, facing the victim's property. You have provided no coherent grounds for why this compelling evidence is false or fabricated. While you refer to dashcam stills having a timestamp of 2018, this is not apparent from the served evidence, and it was open to you to challenge this evidence at trial if you wished. You seek to rely on fresh evidence from a Stephen Arrowsmith. However, Mr Arrowsmith does not assert that he was the only user of the vehicle during the relevant period or that you never used it. Mr Arrowsmith's account does not render your conviction unsafe. I note that evidence was retrieved from your laptop showing doorbell footage of the victim only four days after you were placed on police bail conditions not to contact her, which strongly supports the contention that you were monitoring her movements. – Assertions by the probation service (Ground 6): Your complaints about the pre-sentence report and the assertions made by the probation officer do not impact the safety of your conviction, as the pre-sentence report was prepared after your guilty plea. The conclusion regarding 'sexual intent' was one that the probation officer was entitled to make when producing her report. Evidence of sexual intent was clear from the text messages extracted from your mobile phone between you and the victim, which demonstrated an inappropriate, obsessive fixation on your part towards the victim, providing a clear motive for the offence of stalking. Having reviewed all the material, I conclude that your conviction for stalking was not arguably unsafe. Your guilty plea was unequivocal, entered after full advice and with opportunities to withdraw it, which you declined. The challenges you raise regarding the evidence are not borne out by the information available and do not undermine the strong case against you. Your complaints regarding the probation report relate to sentence, not conviction." 11 The applicant has responded to the Single Judge's comments. He makes no fewer than 19 further points. We have each considered that material, but the further arguments presented either do not address or at least do not advance the pleaded grounds or the Judge's reasons for refusing leave. 12 We agree with and gratefully adopt Sweeting J's helpful analysis. This was a strong prosecution case to which the applicant entered an unequivocal guilty plea on a full facts basis. He did not seek to vacate that guilty plea. The privileged material now reveals that he considered making such an application but took legal advice and ultimately decided not to apply to vacate his plea. 13 Further, we note that Stephen Arrowsmith's evidence was available to the defence both before he entered his guilty plea and before the sentencing hearing, and yet no application was made to vacate that plea. 14 For these reasons we refuse the applicant’s application for an extension of time of 48 days in which to renew his application for an extension of time of 203 days for leave to appeal against conviction, following the refusal by the Single Judge. 15 Finally, the Registrar has drawn our attention to an issue in respect of the reporting restrictions in this case. The order made in the Crown Court inconsistently provides that it was made until the complainant reached the age of 18, and then suggests that it might last indefinitely. The court's power pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999 is to direct that no matter relating to a person concerned in the proceedings shall, while he or she is under the age of 18, be included in any publication if it is likely to lead members of the public to identify that person. Such order was rightly made in this case, but it cannot be made indefinitely. Accordingly, the complainant having now turned 18, we dispense with the reporting restrictions imposed in this case, pursuant to our power under section 45(3) of the Act. __________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]