Caiger, R. v

THE PRESIDENT: Derek Mario Caiger is 56 years old. He has a very deep-rooted problem with alcohol and he has numerous previous convictions, certainly in recent times, arising directly out of his alcoholism.

On 29th July 2004 at the Woodspring Magistrates Court for an offence of being drunk and disorderly he was sentenced to a two year anti-social behaviour order. On 18th March 2005 at the same court he pleaded guilty to common assault, assaulting a police officer and breach of an ASBO and he was committed to the Crown Court for sentence. On 24th May in the Crown Court at Bristol before Her Honour Judge Hagen he was sentenced as follows: for common assault, six months' imprisonment; for assaulting a constable, six months' imprisonment; for breach of the ASBO, three years' imprisonment. Those sentences were to run concurrently, therefore the total sentence was three years' imprisonment. He now appeals against sentence with leave of the single judge.

When in July 2004 the appellant was made subject to an anti-social behaviour order, the order prohibited him from causing harassment, alarm or distress to anyone within the hospital and grounds of the Weston General Hospital. He had unfortunately made a habit of visiting that hospital when in drink, to the distress and disturbance of staff and patients. It was therefore a classic case for an ASBO.

On 11th October 2004 for two breaches of that ASBO he was sentenced to 12 months' imprisonment, with a concurrent sentence of nine months imposed for racially aggravated harassment.

The appellant was released on licence on 9th February 2005, with a sentence expiry date fixed at 10th August 2005. It is a fact of this case, and one which it is necessary to note, given his various problems, that on his release the appellant had nowhere to go; so he drifted back down to the area of Weston-super-Mare. At about 7.30 in the evening of 9th February he was thrown out of a public house because he was being drunk and abusive. Some 10 minutes later a report was received by paramedics that a man had collapsed outside a public house. It was the appellant. He had cut his head.

When the paramedic arrived in a vehicle, which apparently looked not unlike a police car, the appellant stood up and started to shout. When the paramedic walked over to him, he then laid down. When he was asked his name, he became abusive and started to shout and spit. With that the paramedic backed off and radioed for police assistance. The appellant shouted and swore and plainly was very drunk indeed. He was hardly able to stand. The paramedic pushed the appellant away because he believed that he was going to be hit, and the appellant then grabbed hold of him and tried to pull him. He tried to kick the car in which the paramedic had arrived and he did in fact make contact with the paramedic's right knee, causing him pain and pain to the muscle. Fortunately an off-duty special constable pulled him away.

When the police arrived the appellant was arrested. They discovered a cut to his head. Notwithstanding the way in which he had been treated, and to his very great credit, the paramedic then treated the cut, pointing out that it required hospital treatment. During this part of the incident the appellant was spitting, kicking, verbally abusive, and he spat at and hit a police officer.

The police then decided to convey him to the Weston General Hospital. It is an important feature of the facts of this case that the appellant did not wish to go voluntarily. It was not a matter of being taken there against his wishes on its own, but he pointed out forcefully that he really should not be taken to that particular hospital. Faced with the head injury and the advice of the paramedic, the police of course had to take him there. There was not much choice for them; they had somebody under arrest who was injured and who was said by a professional to require to be taken to hospital. It is however unfortunate, as a feature of the case, that they were compelled by their duty to behave in the way which the appellant was asking them not to behave. He really tried not to go to the hospital.

On arrival at the hospital the appellant was put into a side room to keep him away from the waiting public. He swore at hospital staff. He was told his behaviour was unacceptable. He continued to be abusive. He was spitting, although it does not appear that he was spitting at anyone in particular. He was then treated for his cut head.

When he was interviewed on the following day the appellant said he had just been released from prison and he had too much to drink. He denied that he had been violent. He was asserting that he had been assaulted. When he was seen by an interviewing officer at a later stage he was asked whether he had spat at the police and said he did spit a lot. He was asked about the anti-social behaviour order and he said he did not know he had one. Well that was all nonsense of course, as he perfectly well knew.

The early release on licence was immediately revoked and the appellant was returned to custody, where he remained until his court hearing. By the time he appeared before Judge Hagen he had only some 15 days of credit due to him.

The pre-sentence report set out a sad, rather pathetic story, of the alcoholism to which reference has been made. Not so sad of course, save in its consequences, for those who have to endure the kind of behaviour which this appellant is prone to lapse into when he has had too much to drink.

When Judge Hagen came to pass sentence she took the view that the evidence was overwhelming, and that the appellant had little choice but to plead guilty. She pointed out, and we entirely agree, that members of the public services were entitled to go about their jobs without being assaulted or abused, and his behaviour at hospital was disgraceful and a second breach of the ASBO. She plainly took the view that she should impose a sentence which reflected the totality of the criminality which took place on this occasion.

This was not a straightforward sentencing problem. Because of his alcoholism and because he appears to be incapable of mending his ways, there was no realistic non-custodial sentence available to the judge. No recommendation to that effect was made and, if we may say so, for understandable reasons. That left a prison sentence as the only available sentence.

For people most affected by the appellant's ill-behaviour -- the staff at this hospital -- there is no escape. They cannot run away from their responsibilities to other patients, or indeed even to a patient who is himself being abusive and difficult. They are obliged to cope with and endure these sort of situations while they go about their duties with patients in need of treatment, some distressed and concerned, others needing peace of mind. The calm atmosphere which should prevail in an accident area in a hospital was disturbed. The judge came to the conclusion, as we have said, that this behaviour was disgraceful. She took account of the matters to which we have referred in her sentencing remarks and produced the total sentence of three years' imprisonment.

The submission before us included a concession that the judge was not obliged to limit the sentence imposed for the appellant's misbehaviour at hospital by reference simply to section 5 of the Public Order Act, which would have been the substantive criminal offence of which he had been guilty and which could have led to no more than a fine. We had our attention drawn to a number of different decisions arising in the context of sentences for ASBOs: Thomas, Braxton, Anthony, Dickinson, Tripp, Morrison, Boness. We have not been assisted by this kind of detailed analysis of the factual situations in different circumstances to this and reference to consequent sentences imposed at the court, upheld or reduced by this court. What we find significant about this particular case is that while there is absolutely no excuse for the way in which the appellant behaved to the paramedic, or to the police officers or in the hospital itself, we should bear in mind, and perhaps this point was not sufficiently developed before Judge Hagen, not merely the circumstances of this particular man's release, given the nature of his deep-rooted problems, but also that he did make what appear to have been genuine efforts not to be taken to the hospital which had endured his previous misconduct and in relation to which the ASBO had been made. Despite the drink he had taken, he plainly realised and tried to get across that he should not be taken there. We have, and shall not repeat, explained why the police had no alternative but to do so. Once he got there we recognise that there was no excuse for him.

Our conclusion can be expressed in this way. We have taken an overall view of the criminality involved in this case. Our judgment is that with full credit for the guilty pleas, the overall criminality would be reflected in a total sentence of 18 months' imprisonment. We have come to the conclusion with diffidence, taking a different view from the very experienced judge, that a three year sentence here was manifestly excessive. In those circumstances the sentence on the ASBO will be reduced from three years to 18 months. We should, we think, recognise the appellant's pleas of guilty in the other two sentences. We shall reduce them to four months' imprisonment on each, but that does not affect the total sentence which will be 18 months' imprisonment. To that extent this appeal is allowed.