Kirby, R. v [2005] EWCA Crim 1228

Case No 05/924/A9[2005] EWCA Crim 1228
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 4 May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE DAVID CLARKE
Venue RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE SAUNDERS QC
Between
R E G I N ACrownLEE KIRBYDefendant
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR RICHARD BENNETT appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE DAVID CLARKE: On 28th January 2005 in the Crown Court at Teesside before His Honour Judge Bowers the appellant, who is 29, pleaded guilty to dangerous driving and driving whilst disqualified, and he was sentenced to 20 months' imprisonment for dangerous driving and five months' imprisonment consecutive for driving whilst disqualified. The judge also made against him a criminal anti-social behaviour order for ten years.[2]The appeal before us relates both to the length of the sentence of imprisonment and to the making and length of the anti-social behaviour order.[3]The facts were of a depressingly common type. The appellant was seen at about 3 am driving a Vauxhall Cavalier car in Middlesbrough. He was speeding. The police officers decided to follow the car. When they did so, it was driven off at speed along a number of residential streets. It was driven at high speed three times around a circuit of three streets. The appellant then accelerated to between 40 and 50 mph, approaching a roundabout, which he negotiated the wrong way round. He then drove along the wrong side of the road, went through a red light and accelerated to speeds of up to 80 mph. When he tried to overtake another vehicle he collided with an island in the centre of the road. Two tyres burst. He continued. He came to a junction and crashed into railings. He and his passengers then alighted from the car and ran off; but he was found hiding in bushes in a garden and was arrested.[4]The appellant is a man with very many previous convictions, the vast majority being for motoring offences. He had some seventeen convictions for taking vehicles without consent, of which six were for the aggravated form of that offence. Unsurprisingly in those circumstances he had numerous convictions for driving whilst disqualified. He had one previous conviction for dangerous driving. The present case, however, did not concern a motor vehicle established to have been taken without consent.[5]We deal first with the question of the anti-social behaviour order. The police, through the prosecution, sought such an order before the sentencing judge. For both counsel and the judge this was a novelty. We are told that no previous criminal anti-social behaviour order had been made in the Teesside Crown Court. There was some discussion between counsel and the judge, of which we have the transcript. The order originally sought included a number of wide restrictions, such as: not to behave in any way that intimidates or seeks to intimidate one or more persons not of the same household as himself, and other like restrictions, entirely outside the context of motoring offences. The judge rightly considered those were inappropriate in the present case. In one instance he thought the restriction too imprecise to be enforceable anyway. But he was prepared to make an order in the following terms:
"That the defendant, Lee Kirby, must not (1) drive, attempt or drive or allow himself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and (2) drive or attempt to drive a motor vehicle until after the expiration of his period of disqualification."
Thus the anti-social behaviour order did no more than to prohibit him from committing further offences of that same description, and the judge made it for a period of ten years.[6]In his sentencing remarks the judge dealt with the matter in this way. He said:
"I am going to make the anti-social behaviour order. The terms will be this: that you must not drive, attempt to drive or allow yourself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and, secondly, you must not drive or attempt to drive a motor vehicle until after the expiration of a period of disqualification. All right? You understand the purpose of that. THE APPELLANT: Yes. THE JUDGE: Because it actually increases the penalty that the courts can impose on you for those offences, which are now, maximum six, months. It increases the penalty to five years."
It is clear to us from the discussion with counsel and from those sentencing remarks that 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. The question for us is whether this is an appropriate use of that power. Counsel, Mr Bennett, appearing before us was inclined to argue simply as to the length of the order. But in our judgment there is a wider point here that needs to be addressed.[7]The principal decisions of this court and of the Divisional Court on the use of criminal anti-social behaviour orders are P 2004] 2 Cr App R (S) case 63 at page 343, a decision of this court, and C v Sunderland Youth Court [2004] 1 Cr App R (S) case 76 on page 443, a decision of the Divisional Court. The courts held that the test for the use of this power is one of necessity to protect the public from further anti-social acts by the offender. There must be a demonstrable necessity for such an order. Where a substantial custodial sentence is being imposed at the same time, on release from which the offender will be on licence and liable to recall, it should not generally be assumed that there is such a necessity. The need must be considered against the background of the facts of each individual case.[8]In P itself the court was dealing with an anti-social behaviour order made in the case of a prolific 15-year-old robber of mobile phones and the like. The court held that it was wrong in such a case to make an anti-social behaviour order as well as imposing a fouryear custodial sentence. Henriques J, giving the judgment of the court, added:
"35. We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are likely to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited. We endorse the suggestion properly made by Miss Dagnall that there will be cases in which geographical restraints may properly supplement licence conditions."
[9]In our judgment this decision of the court and the earlier case of C 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.[10]Furthermore, we are referred in counsel's advice to the case of Vittles [2005] 1 Cr App R (S) case 8 at page 31, in which the court upheld a criminal anti-social behaviour order. But nothing in that case suggests that such an order is appropriate here. That was a case in which a geographical limitation was clearly necessary for an admissible purpose within the intention and words of the Act.[11]In our judgment the making of an order of this sort should not be a normal part of a sentencing process, particularly in cases which do not in themselves specifically involve intimidation, harassment and distress. It is an exceptional course to be taken in particular circumstances. There was, in our judgment, nothing in this case, despite the deplorable record of the appellant for offences of this sort, to justify the use of this power in the present case. Its effect was no more than to transform any such offence into a different offence, namely breach of an anti-social behaviour order, so as to increase the potential penalty. In our judgment that was unwarranted in this case in the absence of exceptional circumstances.[12]We therefore, rather than simply reducing its length, set aside the anti-social behaviour order. We should add, however, that we have sympathy with counsel and the judge, having been faced with this application from the police at the sentencing hearing without advance notice. We would urge courts to adopt the practice followed in some Crown Courts of insisting on proper advance notice so that suitable consideration is given before the sentencing hearing itself. The judge, furthermore, was quite right to strike out the provisions of the earlier draft which were clearly in standard form as being appropriate for this case. The appropriateness of making an application for an anti-social behaviour order needs to be carefully considered in each individual case and it should not be done as a standard practice.[13]We turn to the length of the sentence, totalling 25 months. Mr Bennett urges us either to make the sentences concurrent or to reduce the individual sentences on the ground that the totality is too high. He points out that the judge made only a one-sixth discount from the maximum terms of two years for dangerous driving and six months for driving whilst disqualified, although the appellant had pleaded guilty at the first opportunity.[14]Against the background of this man's record, it is clear this was a very bad case. No criticism can be made of taking the maximum terms as a starting point. The question is whether the judge was entitled, against the background of this man's appalling record, to pass the sentences which he did.[15]In our judgment he was entirely right to make the sentences consecutive. The fact that the appellant was disqualified and had so many previous convictions for driving while disqualified fully justified the consecutive nature of the sentence. Furthermore, we consider that the judge did give sufficient credit against the background of this particular case.[16]This sentence was passed before the formal issue of the latest Sentencing Guidelines Council guidelines on guilty pleas. In our judgment that guideline did not in its terms apply to this sentencing process. We consider that this sentence was justifiably a severe one for the offences which this man committed. The judge was entitled to proceed as he did to a man with such a record. Indeed we notice what he said, which was:
"I am very sorry to see that you were not able to maintain the progress you obviously intended to make when you came out of prison, but it was appalling driving. You know the score. It is 20 months for the driving and it is five months consecutive for driving whilst disqualified."
[17]Those words to this man were appropriate. The appeal against the length of the sentences is accordingly dismissed. The appeal is allowed to the extent of quashing the anti-social behaviour order only.

Cited in 6 later judgments