Attorney General Reference No 64 Of 2003

THE VICE PRESIDENT: There are before the Court two unrelated cases, both of which raise issues as to the circumstances in which a Drug Treatment and Testing Order (to which we shall refer as a "DTTO") should be made. The first is an application by the Attorney-General for leave, under section 36 of the Criminal Justice Act 1988, to refer a 2 year DTTO made on Moussin Boujettif to this Court on the basis that it is an unduly lenient sentence. We grant leave.

The second is an application for leave to appeal against sentence, referred to the Full Court by the Registrar, by John Harrison, against a sentence of 4 years' imprisonment, in which it is said that a DTTO should have been made in the court below. We grant Harrison leave to appeal.

Before dealing with the particular cases before us, we think it may be helpful to make some general observations in relation to DTTOs. First, we refer to the structure and nature of the DTTO provisions, which were introduced by the Crime and Disorder Act 1998. Such orders give rise to the only community sentence whereby offenders who give their consent are required to attend for drug treatment. They are orders which are designed to increase the number of drug misusers entering treatment and to reduce drug related crime and its impact on communities. There is evidence that such orders are effective in reducing both drug misuse and offending. They are a high-intensity community sentence, which can be targeted at persistent offenders who commit a high volume of crime. They require frequent drug testing and a high level of contact and supervision, in addition to the provision of a wide range of treatment to meet the offender's treatment needs. In consequence, they place a heavy demand on offenders. They are closely monitored and rigorously enforced. Those who pass sentence can influence the overall direction of an order and monitor compliance with it through the means of review hearings. DTTOs provide a good opportunity to divert offenders from prison and provide drug treatment in the most appropriate setting.

By virtue of section 52(3) of the Powers of Criminal Court (Sentencing) Act 2000 the Court may make an order, if it is satisfied that the offender "is dependent on or has propensity to misuse drugs and that his dependency or propensity is such as requires and may be susceptible to treatment."

The legislation does not refer to the type of drugs, but it is contemplated that, usually, such orders will be made in relation to Class A drugs, predominantly heroin and crack cocaine, both of which are linked to acquisitive crime and require the level of drug treatment intervention set out in the national standards for DTTOs.

The Home Office has issued guidance to probation staff in circulars issued in 1999 and 2000 which states "those convicted of burglary, robbery, theft, including shoplifting, perhaps embezzlement and any other acquisitive crime are most frequently to provide offenders suitable for the drug treatment and testing order" and "while those convicted of offences involving violence are more likely to receive a custodial sentence, it is possible that some may be suitable candidates." Volume of offending is likely to be a more important consideration than the seriousness of the offence and DTTOs should, according to the guidance, be targeted at offenders who have a disproportionately disruptive effect on their communities with priority being given to those who are known to be multiple offenders.

There is other guidance given in the London Probation Area that the relevant offence must be serious enough to deserve a community penalty or a short custodial sentence.

The national standards to which we have already referred were introduced by the Home Office in February 2001. They set out the requirements placed on the probation service in relation to assessment, supervision, contact, treatment, testing, court reviews and enforcement. The probation service, jointly with designated treatment providers, assess an offender to determine whether he is likely to respond to treatment and will give his informed consent. The criteria which must be assessed are the type and seriousness of the offence, the seriousness of the drug problem, susceptibility to treatment, motivation to change and volume of drug related offending. DTTOs can be made for between 6 months and 3 years. Where, following sentence in the Crown Court, cases go by way of appeal to this Court, the assessment which is carried out at the pre-sentence stage may not, of course, still be valid.

During the term of such an order, an offender will be expected to attend a treatment programme for 20 hours a week during the first 13 weeks and this can be reduced to 12 hours per week for the remainder of the order if the offender is responding well. The programme has a range of components including clinical treatment, structured drug day care programmes, alternatives therapies, offending behaviour programmes and other interventions designed to provide social reintegration and skills. Where needed, accommodation support is provided. Treatment may be in a residential setting. Offenders are tested for drugs at least twice a week for the first 13 weeks, reducing to a minimum of once per week dependent upon progress.

The courts are required to maintain a supervisory role, over these orders, through review hearings to which we have referred. The probation service is required to advise the court about progress and to provide results of drug tests. This provides a measure of deterrence and allows the court to help in motivating the offender.

Such orders are rigorously enforced. Breach action may be taken after one unacceptable failure and must be taken after a second unacceptable failure to comply with the requirements of the order. A failed drug test is not a breach by itself, but regular failures often indicate unsatisfactory progress, which may also be demonstrated, for example, by unacceptable absences.

Although a custodial sentence can offer benefits that a DTTO does not, by removing the possibility of further offending for the duration of the sentence and providing a highly structured environment for offenders to receive interventions for drug misuse and offending away from outside pressures, the durability of remaining drug free, upon release from prison, can be limited without proper post release treatment support for which it appears, only now, are appropriate resources beginning to be provided.

We turn to the Court's approach in relation to the making of orders of this kind. The art of sentencing involves a particularly difficult exercise of discretion when a judge is deciding whether or not to make a DTTO. This is a matter on which, in due course, the views of the Sentencing Advisory Panel will be welcome. In the meantime, this Court, differently constituted, in R v Belli [2003] EWCA Crim 2752, in a judgment given by Mantell LJ, helpfully reviewed the authorities including Attorney-General's Reference No 28 of 2001 (R v McCollins) [2001] EWCA Crim 1373, R (On the Application of Inner London Probation Service) v Tower Bridge Magistrates' Court [2001] EWCA Admin 401, [2002] 1 Cr App R(S) 179, R v Robinson [2002] EWCA Crim 535, [2002] 2 Cr App R(S) 434, R v Kelly [2002] EWCA Crim 2060, [2003] 1 Cr App R(S) 472, and R v Billinger [2003] EWCA Crim 239. In the course of the proceedings before this Court today, two other authorities have been referred to R v Waters [2003] EWCA Crim 1693 and R v Watson [2003] EWCA Crim 1751.

In the light of the authorities, it is possible to identify, without purporting to be exhaustive, some of the factors relevant when considering whether it is in the public interest that a DTTO should be made:

In the light of these considerations, we turn to the two cases before the Court. The offender, Boujettif, is 24, having been born in June 1979. On 6th June 2003 he pleaded guilty to both aggravated burglary and burglary at premises in Sussex Place, London. He also pleaded guilty to one other offence of domestic burglary and another of attempted domestic burglary and had 36 offences of burglary and three of attempted burglary taken into consideration.

He was sentenced at Blackfriars Crown Court, by His Honour Judge Martineau on 22nd September 2003, to a 2 year Drug Treatment and Testing Order. No separate penalty was imposed for the breach of licence which had occurred by reason of the commission of these offences.

In summary, on 8th May 2003, in the early hours of the morning, the offender broke into domestic premises in Sussex Place and stole a handbag and its contents. He went back to the same premises an hour or two later at 3 o' clock in the morning. He took a knife with a 7 inch blade from the kitchen and woke up the female occupier, close to whom was her 10-day-old baby, sleeping. The mother had been breast feeding and tried to pull her bra back on. The offender threatened her and the baby with the knife. He pulled her from the bed by the arm and led her downstairs to look for her bag. He threatened to kill her if she did anything silly. The bag was not there. They went back upstairs and awakened the victim's mother. The offender from her demanded money and took cash and a watch, in the meantime waving the knife. While this was going on he produced a watch which was recognised by the householders as having been taken in the earlier burglary that morning. He made good his escape with something over £3,000 worth of property.

He then, a little later that day, committed another residential burglary in Pelham Crescent and an attempted burglary in Onslow Gardens. The circumstances of the burglary were that, at 10.10 on the evening of 8th May, a gentleman and his wife were in their bedroom. They were disturbed by a loud banging coming from downstairs. The male householder went down and was confronted by the offender, who claimed to be the police and further claimed that he had found the door open. The offender was holding a walking stick, which the householder grabbed. The offender said: "I've got a knife" and he pulled one out. The householder's wife activated the audible panic alarm. The offender fled. He had stacked up property to the value of some £4,000 by the front door. A length of bamboo cane was found inside the front door.

Within half-an-hour or so, the offender's attentions concentrated on premises in Onslow Gardens, not far away, where there was a dinner party in progress. The hostess noticed her letter box opening and closing and an arm reaching through it the hand of which contained a bamboo cane. She shouted. The offender (for it was he) dropped the cane and ran off. The police were quickly on the scene and they saw the offender nearby. When stopped, he gave a false name. The bamboo cane was found nearby. He was arrested. Fingerprints were taken to establish his identity and it was found what his true identity was and that he was on licence from prison.

On 9th May he was interviewed at length and made admissions in relation to the burglary in Pelham Crescent and the attempted burglary in Onslow Gardens. He said he had taken the knife from the kitchen block in Pelham Crescent to cut the aerial cable and not as a weapon. He claimed to have outstanding drug debts on which he was unable to meet the interest. Since he had been released on licence, on 10th March 2003, he had been living in fear of his creditors. He claimed that he had been unable to visit his probation officer lest thereby he be traced. He had been committing burglaries to fund his crack addiction. He expressed remorse and wanted to make it clear that he had no intention of hurting anyone. He was charged with those offences in Pelham Crescent and Onslow Gardens but it was not until later that the aggravated burglary and burglary in Sussex Place came to the knowledge of the police.

He admitted 36 burglaries and three attempted burglaries, carried out in the west and southwest areas of London, during March, April and May 2003. The total value of the property taken was in excess of £120,000. Property a little in excess of £70,000 was recovered.

When he was arrested for the Sussex Place offences he, at first, denied them, but later he admitted having entered those premises twice in the same evening. On the first visit, he saw a handbag and found cash, which he used to buy crack, and then he returned to the premises knowing there was a computer there. He went into the kitchen and took a knife, he said, to cut the computer wire. He then heard a noise coming from the bedroom and he encountered the mother of the baby whom he asked to be quiet. He still had the knife with him. He admitted leading her round the premises. He claimed to be unaware of the presence of the baby.

There was an impact statement obtained from the mother on 2nd September 2003. This indicates that the consequences of this incident to her have been very serious. It was not a document which was placed before the learned judge. Whether, if it had been, his view as to the appropriate sentence in this case would have been different, it is impossible to say. What we do say is that it would not, as it seems to us, be appropriate for us to have regard to the contents of that statement as it was not before the learned judge and has only recently been served on the defence who, as will shortly emerge, are, in any event, in some difficulties in this case.

The offender has 22 previous convictions, which include two for robbery and 13 for burglary, of which 12 involved domestic properties. His last burglary conviction was in January 2000 when, for offences of robbery, false imprisonment and burglary, he was sentenced to a term of 4 years' detention in a young offender institution. In that case, a knife had been obtained from the victim's premises and used to force the victim to go to a cashpoint. As we have already said, he was released from prison on licence on 10th March 2003. He was recalled on 14th April 2003, the matters to which we have referred having come to light. His licence was due to expire on 10th August 2003.

The pre-sentence report before the judge indicated that the offender's criminal conduct was directly linked to the need to fund his drug habit. The author of the report took the view that the offender's remorse was genuine but also said that the offender was considered to be at a high risk of reoffending. The report also rehearsed the fact that when he was released on licence, no accommodation arrangements had been put in place for him, in March 2003, so he had been forced to sleep rough and had quickly reverted to using crack cocaine. In a later report, he was assessed as suitable for a Drug Treatment and Testing Order which, as we have said, the learned judge ultimately made.

In mitigation before the judge, the early pleas of guilty, the admissions in interview and the acceptance of the other offences taken into consideration, were all stressed. It was said that the offences could be described as opportunistic and he was genuinely remorseful and regretful. He had never been given the opportunity to attend a rehabilitation programme and had been receiving custodial sentences repeatedly since he was 17 years of age.

The learned judge passed sentence on the basis that the total value of the property taken, that is to say the figure in excess £120,000 to which we have referred, may have been inflated. Credit was given for the earliest possible pleas of guilty. The judge went on to say that, had the matters been contested, the offender would have been looking at a sentence of 8 years or more; on a plea of guilty, something like 6 at least. He then said that, if a custodial sentence was to be imposed, he would have been inclined to have imposed one of just under 4 years, which would be a very light sentence. But, in the event, he made the DTTO for 2 years to which we have referred.

On behalf of the Attorney-General, Mr Orchard draws attention to what he submits are a number of aggravating features: the burglaries were at night time; there were repeated offences on the same property in Sussex Place, although as Mr Bogan, on behalf of the offender, rightly points out, the householders would not have been aware of the first intrusion into their premises, when it occurred. Mr Orchard refers to the element of planning which is evidenced by the carrying and use of the bamboo cane or canes. The premises in question were domestic and were occupied. A knife was used to threaten although, as Mr Bogan rightly points out, it was not a knife taken to the premises by the offender. The victims in Sussex Place were particularly vulnerable, having regard to the presence of the baby. Mr Orchard draws attention to the traumatic effects, which are usual in the burglary of occupied households in the middle of the night. Finally, on this aspect, Mr Orchard points out that these offences were aggravated by having been committed while the offender was on licence.

He draws attention to the mitigation to be found in the plea of guilty at the first opportunity, to the fact that the offender was highly co-operative with the police and made admissions in interviews. He accepted the 39 offences to be taken into consideration. He expressed remorse, regret and willingness to attend the Restorative Justice Programme.

Mr Orchard referred to Attorney-General's Reference No 35 of 2001 (R v Girt) [2002] 1 Cr App R(S) 187 where, in a case of aggravated burglary, in which the offender had pleaded guilty, the victim being 72 years of age and the offender armed with a knife, the court, in increasing the sentence passed from three-and-a-half years to four-and-a-half years expressed the view that at least 6 years would have been appropriate in the court below.

Mr Bogan has, with skill, represented the interests of the offender, who is absent from these proceedings because, on 4th November, he absented himself from where he was supposed to be living and undergoing the Training and Treatment provided by the DTTO which the judge had made. A warrant has already been issued for his arrest, but his whereabouts are presently unknown, both to the police and to Mr Bogan, who did not appear in the court below. Mr Bogan inferred that he had instructions to appear on behalf of the offender, although nothing had been heard from him since the Reference was formally made. Mr Bogan, in addition to the parts of his submission to which we have already referred, stresses the double jeopardy which is a feature of all Attorney-General's References, that is to say an offender is being sentenced a second time. He stresses also that some part of the DTTO had been complied with and the offender was, prior to the time at which he absconded, apparently drug free and he asks us to take that into consideration, if we take the view that the sentence passed was unduly lenient, which he submits we should not. He further submits that, even if a DTTO was inappropriate, this Court should have regard to the 4 years or less which the learned judge expressed to have in mind if he imposed a custodial sentence.

All of these matters, we bear in mind. In the light of the considerations set out earlier in this judgment, this was plainly not a case for DTTO. The circumstances of the aggravated burglary and burglary at Sussex Place, involving repeated intrusion in the middle of the night into the same occupied dwelling-house and the use of a knife to threaten the two adults and the baby are serious matters. When there are added the further incursions into domestic premises, in Pelham Crescent and Onslow Gardens, marked by a degree of planning evidenced by the bamboo cane, and when one takes into account the 39 other offences involving domestic premises and the fact that all this criminal activity took place while the offender was on licence and against the background of the offender's record, it seems to us that the public would be affronted and confidence in the criminal justice system would be undermined if a very substantial term of imprisonment were not to be imposed on this offender.

Accordingly, we conclude that the DTTO was an unduly lenient sentence. We would have expected, in the court below, in relation, in particular, to the aggravated burglary, a sentence of 6 years or more. Taking into account double jeopardy, that a custodial penalty is now being imposed, that some part of the DTTO had been successfully complied with, and the special particular mitigation applicable to this offender, the sentence which we pass in relation to all of these offences, concurrently in each case and taking into consideration the 39 other offences, is one of 4 years' imprisonment. That sentence will start to be served when the offender surrenders or is arrested pursuant to the warrant which has already been issued.

We turn to John Harrison. On 25th April 2003, at Bolton Crown Court, he pleaded guilty to a count of burglary. On 4th June he pleaded guilty to a count of assault occasioning actual bodily harm. He was sentenced by Her Honour Judge Kushner QC to 4 years' imprisonment for burglary and 6 months concurrently for the assault occasioning actual bodily harm. As indicated at the outset of this judgment, we have granted leave to appeal.

The facts were that, on 9th February 2003, the appellant knocked on the door of a house of a man called Williams whom he knew. The appellant was with another man whom Williams did not know. When Williams opened the door the appellant asked for money and assaulted him, causing a small laceration to the scalp. The appellant told his accomplice to take a video player. He also saw that Williams was wearing a gold bracelet and the appellant shouted at him to take it off. As he was doing so, the appellant ripped it from him. He then saw some keys for a car and he took them together with Williams' mobile telephone. The appellant and his accomplice used the keys to drive off in Williams' car. Williams went to hospital and received three stitches for his cut.

On 15th February the appellant was arrested and in interview he declined to comment. The basis of his plea was that he knew the victim, as he had previously bought drugs from him. He accepted that he had entered the premises uninvited and taken the items referred to. He accepted responsibility for the injuries but he had never had any weapon at the time of the offence.

The learned judge, in passing sentence, took account of the plea and basis of the plea, the fact that no weapon had been used and the fact that good progress had been made while on remand, prior to sentencing. She said that this was not a simple burglary and had all the hallmarks of robbery. So far as that comment is concerned, the offender fell to be sentenced for burglary. The learned judge went on to say that, although the defendant had been assessed as suitable for a Drug Treatment and Testing Order, he was not fully ready for that, at the moment. He was still minimising his involvement in the offence and not only had he to address his problems with drugs, but he also had to address the problems that had led to his offending. Accordingly a custodial sentence was inevitable. We do not criticise the learned judge for taking that view, at that stage, in relation to the propriety or otherwise of making a DTTO.

The appellant is 36 years of age. He has regularly (almost every year for over 20 years) appeared before the courts for dishonesty offences and occasional minor violence. Since he was sent to borstal (more than 20 years ago) and to youth custody for 15 months (18 years ago) he has been dealt with by a variety of community penalties and fines and short periods of imprisonment, the longest of which was a period of some 10 months. The last sentence of imprisonment was one from which he was released about 11 months before these offences were committed. It is apparent that drug addiction has been at the root of his criminal offending.

It is equally apparent, in the light of the recent report, dated 12th November 2003, which is before this Court and which was, of course, not before the sentencing judge that, in the period of 9 months which the appellant has now spent in custody, he has used his time constructively to address his drug and other related problems. His behaviour and attitude towards his sentence have been excellent. The progress that he has made is evidence of a high degree of commitment and motivation on his part to address his offending behaviour and related problems. In consequence, the likelihood of him re-offending and the risk of harm posed to the public have now been significantly reduced.

He appreciates that, should he relapse from his present drug free state, the likelihood of him reoffending will be significantly increased, as will, of course, the likelihood of him appearing before the courts in future. His views are assessed in the report as being realistic. But he needs a good deal of support in relation to his genuine desire to lead a drug and offence free life.

He is eligible for a DTTO but the view is expressed by the author of this report that to make such an order at this stage would be a retrograde step because it would necessarily bring the appellant into contact with others who are still using drugs. A community punishment order would not offer the means or opportunity to address his offending behaviour or victim awareness.

What is suggested in the report is that the court make a community rehabilitation order, that being the most appropriate course suitable for him at this time. He is assessed as being suitable for inclusion on a Think First Programme. He is also to be supported, if the Court makes such an order, by an ACORN team, which will make provision for accommodation for him on his return to Bolton.

In the light of those considerations and the submissions made by Mr Sastry on the appellant's behalf, the Court is persuaded that the appropriate course, in relation to this appellant, is to quash the sentences of imprisonment imposed on the appellant by the learned judge and to substitute, in relation to the two offences, a community rehabilitation order. The Court's present inclination is to make that for a term of 2 years but there is nothing in the report before the Court which expresses a view as to what would be an appropriate term.

The Court is also minded to make it a condition of the order that he take part in a Think First programme, that he addresses his substance misuse and, it may be, that there should be a specific condition imposed in relation to a drug abstinence requirement. The appellant is not here today because his case came before the Court as an application only.

It is necessary, before a community rehabilitation order can be made, for the Court itself to explain to the appellant the nature, effect and consequences of such an order. That, as it seems to us, must either be done face-to-face or, if it is possible for arrangements to be made, by way of a video link. The terms of this judgment have indicated that we will allow this appeal and make a community rehabilitation order. The length and special conditions of that order will be identified when the court has the opportunity, by one of the two courses which I have indicated, to explain the position to the appellant.

THE VICE PRESIDENT: Mr Sastry, we are told that arrangements have been made for a video link at 10.30 tomorrow morning. The Court, on that occasion, will consist of two of the present constitution. It may or may not consist of all three. But, as this is a sentence appeal, that does not matter. There is no need for you to attend. You have heard the result and there is no particular part that you can take in the proceedings unless there is something about this matter that we do not know. It follows, Mr Fryman, there is no need for you to attend either.

For the avoidance of doubt, the appeal will not formally be allowed until tomorrow morning but it will be allowed then for the reasons which we have sought to explain.

MR JUSTICE LEVESON: Are you John Harrison?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: Just hold on a minute. Mr Gardiner, thank you very much for your report. I gather that a condition can be made in relation to the Think First Programme. You asked for a condition in relation to residence which I would impose in any event but we cannot make a Drug Abstinence requirement. Other than that, the general condition about substance abuse is not required to be specified as part of the community rehabilitation order.

THE LIASON PROBATION OFFICER: That's correct, I apologise for the handwritten report.

MR JUSTICE LEVESON: Thank you very much. Mr Harrison, let me explain. Yesterday, in the presence of your counsel, it was made clear that this Court was prepared to quash the sentence imposed upon you for burglary and assault and to impose in its place a community rehabilitation order. Do you understand that?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: Has that been explained to you overnight. Since yesterday?

THE APPELLANT: No.

MR JUSTICE LEVESON: You have not been told that?

THE WITNESS: No.

MR JUSTICE LEVESON: I will explain. Let me make clear what is required of you under the order that we are about to make. The Court intends to deal with you by means of a community rehabilitation order, which was known as a probation order, for a period of 2 years. Do you understand?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: The effect of the order will be that you will be under the supervision of a probation officer for that period of 2 years. Do you follow?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: We intend to impose two further additional requirements. The first is that, as directed by your supervising officer, you attend a Think First Programme. It is designed to assist you. Do you follow?

THE APPELLANT: Yeah.

MR JUSTICE LEVESON: The second is that you reside at an address approved by your supervising officer, and do not live elsewhere without prior approval. Do you understand?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: Very good. As part of your community rehabilitation order, it is inevitable that you will be required to address your substance abuse; in other words, you have to consider the damage you are doing to yourself by use of drugs. I am sure that you will be prepared to do that. Do you agree?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: Right. If you fail to comply with any of the requirement that I have just outlined, you will be brought before a Magistrates' Court which will be able to fine you, or order you to perform a number of hours work. Alternatively, you may be sent back to the Crown Court for sentence and the Crown Court will have a power to revoke this order and pass any other order on you including sentence of imprisonment. In other words, we are giving you a chance. If you fail to take this chance it is inevitable that you will end up serving longer and longer terms of imprisonment. Do you follow?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: Right. That is the sentence of the Court imposed upon you. It had to be done in your presence. You were not here yesterday, so I have now explained it to you and therefore doubtless you will be able to speak to the probation officer within the prison where you are presently detained who can arrange for your release accordingly. Do you follow?

THE APPELLANT: Yes.

MR JUSTICE LEVESON: That is the sentence of the Court and the appeal is allowed to that extent. Thank you very much.

THE APPELLANT: Thank you.