Barnard, R. v

LADY JUSTICE SMITH: On 19th January 2006 at the West London Magistrates Court, the appellant pleaded guilty to one offence of theft from a motor vehicle and one offence of attempting to take a motor vehicle without consent. He was committed to Crown Court for sentence.

On 10th April 2006 at the Crown Court at Blackfriars for the offence of theft the appellant was sentenced to 15 months’ detention in a young offender institution. Although it was not entirely clear from the court record, it appears that the appellant was sentenced to a concurrent term of 15 months’ detention for the second offence, that of attempting to take a vehicle without consent. The judge, Judge Byers, also imposed an anti-social behaviour order which was to remain in force for five years and which prohiobited the appellant from;

On 5th May 2006 at the same court Judge Byers varied the sentence so as to order that 38 days already spent on remand should count towards the sentence.

The appellant now appeals against the custodial sentence and the anti-social behaviour order by leave of the single judge.

The facts of the offence of theft from a motor vehicle were that, on 6th January 2006, plain clothes police officers saw the appellant acting suspiciously in West London and alerted local CCTV operators to monitor him. The appellant was seen to cycle up to a parked motor vehicle and smash a rear window by throwing an object through it. He then reached inside the vehicle and took a trolley case that contained a wig and gown. The property stolen was valued at £800. The appellant was stopped almost immediately afterwards. When interviewed he made full admissions. He said he used stones to smash the car window. He said that he owed money and was a regular user of crack cocaine.

Unfortunately very little is known about the offence of attempting to take a vehicle without consent, save that it is known that it was committed on 10th December 2005.

The appellant was born in February 1986. He is now 20 years of age. He had poor record going back to 2003. He had been convicted on five occasions for a total of 11 offences. The offences included three of burglary of a dwelling, two of destroying property, three of theft, one of theft from a motor vehicle and one for being carried in a vehicle taken without consent. The previous conviction of greatest significance was an offence of dwelling-house burglary committed in July 2004 for which the appellant had been sentenced to 30 months’ detention in December 2004. He had been released on licence in October 2005. Thus, the two offences for which he was dealt with by Judge Byers were committed only two and three months respectively after his release on licence. There had been a further conviction before sentence, committed after the offences with which he fell to be dealt with. On 27th March 2006 at West London Magistrates Court for one offence of theft committed on 29th/3Oth December 2005, the appellant had been sentenced to eight weeks’ imprisonment.

Following his arrest for the offence of theft from a motor vehicle, the appellant was recalled to prison for breach of his licence. It appears that he would notionally have been released having served that term in May 2006. However, in view of the additional sentence of imprisonment that was imposed concurrently with the recall for breach of licence, the appellant is now due to be released on licence in October 2006.

Before the sentencing judge there was no up-to-date pre-sentence report. This was due to inadequate resources in the probation service. A pre-sentence report compiled in November 2004 in respect of the offence of burglary that we have mentioned was before the court and provided useful information about the appellant’s family background, his addiction to cocaine and his attempts (unsuccessful at that time) to break his drug habit. There was also before the court a good deal of information in support of the Crown’s application for an anti-social behaviour order.

In passing sentence, the judge observed that the offence had been committed while on licence. He referred to the previous convictions and the fact that the appellant had already been recalled for breach of licence. He mentioned that all the offending appeared to relate to the appellant’s drug habit. He said that even on a guilty plea the sentence had to be a custodial one and he considered that the right sentence was 15 months’ imprisonment.

The Judge then observed that it was sensible that there should be an anti-social behaviour order. The order, he said, would last for five years. The judge considered that limiting the geographical ambit to those parts of West London where the offences had been committed was insufficient and part 1 of the order should embrace the whole of Greater London.

In this appeal Miss Eysenck contends that the custodial sentence of 15 months was excessive. Insufficient account had been given for the plea of guilty which had taken place at the earliest stage. The notional sentence following a trial would have been of the order of 22’~ months which she submitted was manifestly excessive. Miss Eysenck also submitted that insufficient account had been taken of the appellant’s determination to break from his drug habit. That would, as it appeared from the 2004 pre-sentence report, entail breaking away from family members who were themselves drug users. They included his mother and elder brother.

It seems to us that these submissions were not helped by the lack of an up-to-date pre-sentence report. Similar claims of a desire to break with the past had been made in 2004. The probation officer then had anticipated improvement which had obviously not materialised. It seems to us that the judge was entitled to be sceptical of the appellant’s claims to a desire to reform.

Our view, bearing in mind that this offence of theft and also the offence of attempted taking of a motor vehicle were committed by this appellant very shortly after his release on licence, the sentence of 15 months cannot be said to be manifestly excessive. True, it is a severe sentence for these offences taken in isolation, but bearing in mind the background circumstances we do not consider that it was inappropriate and certainly not manifestly excessive. Accordingly, that part of the appeal fails.

Turning now to the imposition of an anti-social behaviour order (ASBO). Miss Eysenck submitted that the judge had been wrong to impose an ASBO at all. In the alternative if an

The power to impose an ASBO following upon conviction in criminal proceedings is found at section 1C of the Crime and Disorder Act 1998. This provides:

“If the court considers —

(a)

that the offender has acted, at any time since the commencement date [1st April 1999] in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b)

that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him it may make an order which prohibits the offender from doing anything described in the order.”

Miss Eysenck acknowledged that the first condition was satisfied in respect of this offender. He habitually commits crimes against vehicles parked on the streets of West London and he certainly causes a good deal of distress to persons living in that area whose cars are broken into and whose property is stolen. However, Miss Eysenck submitted that the judge had not applied his mind to the question of whether an ASBO was necessary to protect people from further anti-social acts. The Judge said only that he thought an order would be sensible. Miss Eysenck was not, we think, quibbling about the use of the word “sensible” as opposed to “necessary”. She accepted that the judge had to make a judgment about whether an ASBO was necessary and that he might express himself without using that word. Rather the force of her submission was that the judge had not considered, as he should have done, what could be gained by the use of an ASBO and had not therefore considered whether it really was necessary for the protection of the public from anti social acts.

Miss Eysenck referred the court to R v Boness and others [2006] 1 Cr.App.R (5) 690. That case concerned several offenders upon whom ASBO5 had been imposed. The court (Hooper U, Roderick Evans and Pitchers JJ) examined the relevant authorities. They stressed that the purpose of an ASBO was not punitive, it was preventative. Its purpose was to enable the police to take action before a criminal offence was actually committed. The court also said that the terms of the order must be proportionate, in the sense that they must be commensurate with the risk to be guarded against. That was particularly important as the imposition of an ASBO would be a limitation on the offender’s liberty and might interfere with his rights under the European Convention on Human Rights.

In respect of orders the effect of which was to prohibit the commission of a criminal offence, the court at paragraph 31, said this:

“It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent. If~following conviction for the offence~the offender would be liable to imprisonment then an ASBO would add nothing other than to increase the sentence if the sentence for the offence is less than 5 years’ imprisonment. But if the offender is not going to be deterred from committing the offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be thought) further to deter and is therefore not necessary.”

Then, at paragraph 33, the court continued:

“It has been held, rightly in our view, that an ASBO should not be used merely to increase the sentence of imprisonment which an offender is liable to receive. In Kirby [2005] EWCA Crim 1228 an ASBO had been made prohibiting the offender from driving, attempting to drive or allowing himself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and driving or attempting to drive a motor vehicle until after the expiration of his period of disqualification. As the Court (presided over by Maurice Kay U) found, the judge’s purpose in making this order was to secure the result that if the appellant committed such offences again the court would not be limited to the maximum penalty for the offences themselves but would be able to impose up to five years’ imprisonment for breach of the anti—social behaviour order. David Clarke J giving the judgment of the Court said:

‘In our judgment this decision of the court [in R v. P] and the earlier case of C [C v Sunderland Youth Court [2004] 1 Cr. App. R.

(s)

76] serve to demonstrate that to make an anti-social behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised.’”

Miss Eysenck submitted that the first limb of the prohibition under this order was in effect the offence of interfering with a motor vehicle, which is a criminal offence, albeit only a summary one. Therefore to impose an ASBO in the terms suggested would be to offend against the principle as outlined in paragraph 33 of Boness. She also submitted that the inclusion of the words “touching any unattended vehicle” were too wide and vague and they should be struck down on that account as well. As for the second limb of the proposed order, which prohibited the carrying of a stone or rock or similar object for breaking glass, she submitted that this was unclear. If it meant that the offender had to have the intention of breaking glass_, the prohibition was essentially the same as going equipped for theft for which the sentence should provide an adequate deterrent. The police did not need an ASBO to prevent that offence. Ordinary police and court powers should be sufficient. In any event_, she submitted that the terms of the prohibition were too wide and too vague.

On the question of whether an ASBO was necessary in the present case, Mr Lofthouse who appeared for the Crown and for whose submissions we are grateful, agreed that the purpose of an ASBO is preventative and that the test is one of necessity. He submitted that, in this case, there was a real need for an ASBO because it could enable the police to act before the offender actually committed his crimes. However, we found ourselves unable to accept that submission. We can envisage this offender loitering in the streets near some parked cars. If he is known to the police he will be watched, as he was in the instant case, with, in this case, the assistance of CCTV, and if he attacks a car he will be arrested. Mr Lofthouse’s submission was that the police would be able to stop and search him for stones and rocks and other items for breaking glass before he could use them. However, in our view an order to that effect is likely to be of very limited use. The description of this offence

Accordingly, we are persuaded by Miss Eysenck that this is not a case in which an ASBO should have been imposed. One is not necessary for the protection of the public from further anti—social acts. We stress that we are most sympathetic to the task of the police in trying to monitor and prevent this type of prevalent crime. But we do think that ordinary policing methods are the way in which it must be done and not by the imposition of an ASBO which does no more than to seek to prohibit the commission of a crime.

We would add that if we had been minded to uphold the ASBO in this case we would have cut it down in both time and place, heeding the advice in Boness that such orders must be proportionate in the circumstances.

Accordingly, this aspect of the appeal is allowed and the anti-social behaviour order as imposed by the judge in April 2006 is quashed.