Rush, R. v [2005] EWCA Crim 1316

Case No 2005/00019/A0[2005] EWCA Crim 1316
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 12 May 2005
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE WALLER
MRS JUSTICE COX
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrownPAUL DAVID RUSHDefendant
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR P J CURRER appeared for APPELLANT
J U D G M E N TThursday, 12 May 2005
[1]On 9 November 2004, in the Crown Court at Newcastle upon Tyne, the appellant, who is aged 26, pleaded guilty on re-arraignment to a count of burglary. On 2 December he was sentenced by His Honour Judge Milford QC to two-and-a-half years' imprisonment. The judge also made an Anti-Social Behaviour Order with a duration of ten years from the date of the release of the appellant in the following terms:
"(1) Not to engage in any conduct that will cause alarm, harassment or distress to Stephen or Isobel Rush. (2) Not to encourage others to engage in conduct that will cause alarm, harassment or distress to Stephen or Isobel Rush. (3) Not to make contact either directly or indirectly with Stephen or Isobel Rush."
The appellant now appeals against sentence by leave of the single judge.[2]The prosecution arose from an unusual form of burglary. Until about three years before this offence the appellant had lived with his parents at their home in North Shields, but he had been ejected from the house because of his behaviour. On numerous occasions he returned to the family home and caused a disturbance there. He was well aware that he was not welcome at the house. He has a substantial history of previous offending; that offending was almost entirely targeted at his parents.[3]On the afternoon of 14 July 2004, the appellant's father answered the door to find the appellant there. A discussion took place in which he asked to see his mother. She came to the door. The appellant asked her for some cigarettes. She refused. He became more agitated. His father returned to the door from the living room because of the commotion that was taking place at the door. He pushed past his father, went to the kitchen, took a packet of cigarettes from the cupboard and left the house. That was the burglary.[4]On 15 July, the following day, the appellant was arrested. He denied that he had been to his parents' home.[5]As we have indicated, he had a long history of offences, of common assault, theft and harassment, mainly directed against his parents. His latest conviction was for a burglary at their home in June a month earlier, for which a 240 Community Punishment Order had been imposed on 6 July, which was only nine days before the commission of the present offence. He had fallen out with his parents as a teenager. Relations between them never improved, though we are told that they have improved somewhat between the commission of this offence and the date of sentence. His parents were unwilling that day for the prosecution to proceed.[6]The appellant was a long-term substance abuser both in relation to alcohol and drugs. The pre-sentence report before the court painted a bleak picture. The appellant impressed the author as being selfish and truculent. He paid no attention to repeated orders of the court which had restrained him from contact of and harassment of his parents. Whatever anyone else said, he knew best.[7]It is against that background that the police, through the Crown, sought from the sentencing judge an Anti-Social Behaviour Order. As drafted, the order was in wide terms, but in discussion it was narrowed so as to provide protection specifically to the parents of the appellant rather than to the wider community. The judge remarked that the appellant had declared war on his parents.[8]In passing sentence

the judge said this:

".... you fall to be sentenced today for an offence of burglary. On 14 July this year you barged into your parents' home in North Shields and you stole a packet of cigarettes. On the face of it, a burglary at the very lowest end of the scale, but it is not, because it has to be seen in its context. The context of it is this, that since the summer of the year 2000 you have committed one offence after another against your unfortunate parents. The application for an Anti-Social Behaviour Order sets them out one after the other. You must have, frankly, made their life a complete misery." 9. "
I .... agree with .... the probation officer that the time has come for a sentence to be passed of sufficient length to deter you from further ill-treatment of your parents, and that is the sentence I am going to pass. 10. I am satisfied that no sentence other than a custodial sentence can be justified, and the sentence that I pass upon you for the offence of burglary is thirty months' imprisonment." The judge ordered that to be served consecutively to the five months which had been imposed by the magistrates and which the appellant was then serving.[9]We deal, therefore, first with the length of that prison sentence. Undoubtedly, a prison sentence was inevitable. The judge rightly described the offence as at the lowest end of the scale of burglaries. He reminded himself of the early plea of guilty.[10]In our judgment the sentence was too long for the particular offence with which the court was dealing. It involved the appellant pushing past his father into the house, where he was unwelcome, and stealing a packet of cigarettes from a place where no doubt he knew they would be. It seems to us that, whatever the aggravating surrounding circumstances and background and the history of offences against the parents, this sentence was much too long for that particular activity, particularly when coupled, as it was, with the Anti-Social Behaviour Order, which was itself imposed for the protection of the parents.[11]In our judgment the proper sentence for this offence of burglary, following the appellant's plea of guilty, was one of twelve months' imprisonment. That we substitute for the two-and-a-half years imposed by the judge.[12]We turn to the Anti-Social Behaviour Order. The principal decision of this court on the use of criminal Anti-Social Behaviour Orders is R v Shane Tony P [2004] 2 Cr App R(S) 63, page 343. The court 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. Furthermore, 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 a necessity for this additional power of the court to be invoked. If we had been inclined to uphold the length of this sentence, in the light of that consideration we would have been likely to quash the Anti-Social Behaviour Order. The court held in Shane Tony P that it was wrong to impose such an order on a 15 year old prolific robber of mobile phones and the like on whom a four-year custodial sentence was being imposed. However, the court did not rule out the use of such an order in appropriate cases and appropriate circumstances.[13]It is clear, in our judgment, that the making of an Anti-Social Behaviour Order should not be a normal part of the sentencing process, particularly in cases which do not themselves specifically involve intimidation and harassment. It is a course to be taken in particular circumstances. The question is whether it was a justified course to be followed in this case.[14]This case involved a persistent course of conduct of intimidation and harassment by the appellant of his parents. The order was focused on the protection of those parents -- the victims of that long history of offences. In our judgment they are entitled to the protection which the Anti-Social Behaviour Order affords well beyond the date on which the appellant will be released from custody.[15]However, we consider that the duration of the order was excessive. It implies that the need for that protection will last until the appellant is in his mid-thirties. Having regard to the potential sentence for breach of an Anti-Social Behaviour Order, which can include activity which would not otherwise amount to a criminal offence, we consider that the court needs to give careful consideration to the length of the order. We question whether the judge did so because he gave no particular reasons for his decision to make it ten years in length.[16]We are told that the order may no longer be entirely appropriate because of the parents' wish to renew some contact. Indeed they have been visiting the appellant whilst he has been in custody. It seems to us that visiting him in custody is not necessarily the same thing as a willingness to have him attend at their property unshackled by any such restraint as the Anti-Social Behaviour Order represents. The order was made for their protection. As the judge pointed out, it does not stop them from in appropriate ways making contact with him. We remind ourselves that by section 1C(6) of the Crime and Disorder Act 1998:
"An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged."
If the signs of improved relations persist beyond the appellant's period in custody, that application will be open to him to make to the Crown Court.[17]In our judgment, it is appropriate to uphold the Anti-Social Behaviour Order in principle, but to reduce its duration to five years rather than the ten imposed by the judge.[18]The prison sentence of two-and-a-half years will be quashed and replaced with one of twelve months. The Anti-Social Behaviour Order will be for five years rather than ten. The appeal is allowed to that extent.

Cited in 1 later judgment