Lamb, R. v [2005] EWCA Crim 3000

[2005] EWCA Crim 3000Case No 200504108 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ON APPEAL FROM
THE CROWN COURT AT NEWCASTLE
His Honour Judge Whitburn Q.C.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2005
Before
LADY JUSTICE HALLETT D.B.E.MR JUSTICE LEVESONHIS HONOUR JUDGE PATIENCE Q.C.Sitting as a Judge of the Court of Appeal (Criminal Division)
Between
CHRISTOPHER LAMBAppellantTHE QUEENRespondent
Miss Ailsa MacDonald (instructed by Registrar of Criminal Appeals) for AppellantHearing Hearing dates : 8/10/2005
Judgment
[1]This is another case of a substantial sentence imposed for breach of an antisocial behaviour order and requires the court, once more, to consider the appropriate principles behind such sentences. On 30 June 2005, in the Crown Court at Newcastle, this appellant appeared for sentence in relation to three breaches of an antisocial behaviour order. Upon each count concurrent, he was sentenced by HH Judge Whitburn QC to 22 months detention in a YOI to be served after a period of two months detention outstanding from an earlier sentence for an identical offence making 2 years in all. He now appears against sentence with the leave of the single judge. The appeal was heard three days ago and adjourned so that enquiries could be made about where the appellant might live in the event that it succeeded.[2]Having regard to the nature of the order, it is appropriate to start with an analysis of the background of the appellant. The appellant is now 18 years of age having been born on 29 January 1987. He has appeared before the courts on no fewer than 25 occasions for over 50 offences. Before he was 16, in addition to many community based penalties, he had served two sentences of detention for burglary and, by the middle of 2004, he had served a further term of detention. On 11 October 2004, at the North Tyneside Youth Court, for using disorderly behaviour or threatening abusive or insulting words likely to cause harassment alarm or distress, at Whitley Bay Metro Station and for common assault, he was ordered to undertake community punishment for 120 hours and made the subject of an ASBO for two years, the terms of which were as follows:
“The Defendant is prohibited from entering Whitley Bay Town Centre as defined in the map given to him. Furthermore you are not permitted to enter the entire Metro transport system in Tyne & Wear and you are not permitted to enter any Nexus premises forming part of the Metro system. Furthermore you are not to consume alcohol in any public place nor be drunk in any place.”
[3]He subsequently sought to appeal against the terms of that order but before the appeal could be heard, matters had moved on.[4]On 16 October, that is 6 days after the ASBO was imposed, the appellant was in breach of it when he was found travelling on the Metro system. Two days later, for that offence, he was sentenced by the Youth Court to a Detention and Training Order for 6 months. On 19 November, an appeal against that sentence was upheld by a Recorder who, according to Miss MacDonald who appears on his behalf, substituted a conditional discharge. This result does not appear in the appellant’s antecedents but we accept that it is so and that he was released that day because during the course of that very evening, he was again arrested at a Metro station when he ran away from the police: no harassment was then alleged. So it was that on 26 November, the same Youth Court sentenced him to a Detention and Training Order for 12 month for what was a second breach of the ASBO.[5]On 1 December, the appellant appeared before the Gateshead Youth Court for racially aggravated threatening abusive insulting words or behaviour causing harassment alarm or distress and for using threatening abusive insulting words or behaviour with intent to cause fear or provocation of violence: this offence had been committed on 28 December 2003. For the first offence, he was then sentenced to a Detention and Training Order for 4 months concurrent with the 12 month term imposed five days earlier in North Tyneside; for the second, he was absolutely discharged.[6]On 15 December, his appeal against the ASBO came to be heard at Newcastle Crown Court by the same Recorder who had dealt with the matter four weeks earlier. He dismissed the appeal against the terms of the ASBO but the 12 month custodial sentence for the second breach was reduced to 6 months and, on the basis that the conditional discharge had not been a lawful sentence, under the slip rule it was altered to an absolute discharge. Without in any sense criticising this Recorder in this case, the justification for and precise limits of antisocial behaviour orders require very careful consideration (on which, for example, see the decision of this court in Boness and others [2005] EWCA Crim 2395) and we doubt whether appeals against such orders should be heard below the level of circuit judge. In any event, this order of the Recorder was not the subject of further challenge by way of case stated. We shall return to this aspect of the case later.[7]We are not told the precise date of the appellant’s release from the ultimate custodial sentence of 6 months dating from 26 November but it is likely to have been towards the end of February. Ignoring an appearance before the courts for theft and dangerous driving committed in December 2003, on 3 March 2005, once more at liberty and now 18 years of age, the appellant was again found just within the prohibited area of the Metro. There was no harassment but he appeared before the North Tyneside Magistrates for this breach of the ASBO and was sentenced to 3 months imprisonment. He was released on 1 April and within seven hours was found in the door of the British Legion Club, also within the prohibited area; he was drunk but, again, there is no suggestion of harassment on his part. This time he was committed for sentence to the Crown Court where, on 12 May, he was sentenced to 2 months imprisonment from which he was released (doubtless having regard to the period spent in custody on remand) on 3 June 2005.[8]On 10.30 pm on 4 June, the appellant was seen entering Monkseaton Metro Station; when he saw that he had been spotted by police officers, he ran across the railway track. At 10.10 pm on 7 June, he was seen by officers coming out of the same Metro station, again running off. About an hour later, he was seen running across railway lines at Whitley Bay Metro Station. An aerial search was mounted and he was found hiding in a garden. Each of these three sightings represented breaches of the ASBO. He admitted all three at the first available opportunity but was committed to the Crown Court.[9]That was the background of the appellant when he appeared before Judge Whitburn who had sight of no fewer than three pre-sentence reports. The first had been prepared on 20 April in relation to the 1 April arrest and suggested specific assessment making the point that, although he was not believed to represent a direct risk to public safety, his offending and antisocial behaviour generated a high risk of his re-offending. The assessment, unfortunately, did not help; he would not be able to attend community punishment in Whitley Bay (because of the ASBO) and was not prepared to travel to North Shields. His mother, in poor health with two children to cope with, could not deal with him and, in any event, had been given notice to quit; finally, there were doubts about his motivation. It was after this report that the 2 month term was imposed. Finally, on 21 June 2005, the probation officer wrote that the situation had not changed: he was not prepared to comply with his ASBO as he considered it difficult and unfair.[10]When passing sentence of 22 months in a young offender’s institution to commence after two months of the unexpired portion of the earlier sentence,

Judge Whitburn put the matter in this way:

“The time has come – and I know that you think it unfair that the antisocial behaviour order was made and it interferes very greatly with your freedom of movement, but that was the purpose of it frankly – the time has come for you to spend a considerable time in prison reflecting on why it was that an anti-social behaviour order was made. … Now the purpose of an antisocial behaviour order is to emphasise to a defendant what it is that they will not be able to do in the future. It is predicated upon the basis that the offender understands that he or she should not do this, and he or she will not do it. If you persistently breach it the Court has no alternative but to impose a sentence, in your case of custody in a young offender’s institution of some very considerable length. The public deserve to be protected. The public, it is clear are sick and tired of antisocial behaviour by people like you.”
[11]Given that none of these breaches had been occasioned by antisocial behaviour properly so described (as opposed to being on property that was the subject of a prohibition in the order), it is not entirely clear in the case of this appellant from what specific conduct the public required protection. The justification for imposing punishment was and can only have been based upon the appellant’s persistent and deliberate failures to comply with the order of the court. That justification is perfectly sufficient but it is important to provide a measure of context.[12]It is worth saying something about the effect of the ASBO on this appellant and the reason (justified or not) for his sense of grievance. Miss MacDonald has explained that the reference in the order to Nexus is to the company operating the bus service in this area. Thus, an exclusion from Nexus property is an exclusion from bus shelters operated by that company that form part of the Metro system so that not only can the appellant not enter the Metro system but he has difficulties otherwise accessing public transport. Given that he cannot enter Whitley Bay town centre either, his opportunities for social interaction are particularly limited. As a result, she submits that compliance means that he will become more and more isolated from mainstream society such that rehabilitation and reintegration will be extremely difficult.[13]We are not privy to the argument advanced before the learned Recorder upon the appeal against the ASBO or as to the manner in which the statutory preconditions for an ASBO were satisfied and, in particular, whether pursuant to section 1C(2) of the Crime and Disorder Act 1998 it was truly necessary to protect persons in England and Wales from the offender acting 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. In the circumstances, we say no more about it, save to underline that the concerns identified by this Court in Boness (supra) about the over wide drafting of such orders appears to us to be well founded in this case. In that regard, we note that an application can be made pursuant to section 1C(6) of the 1998 Act for variation of the terms of an ASBO (no application for discharge being possible for two years when, in any event, this particular order lapses).[14]We are confronted with the problem of an offender who, without committing crime, or in fact harassing or causing distress to any member of the public, repeatedly breaches the order of the court. As Judge Whitburn observed, flouting such an order is itself a serious matter. How should it tackled?[15]We start by reference to the underlying purpose and effect of ASBOs.

(S) 36, the matter was put in this way (at paragraph 3):

“It is undeniable that [an ASBO] represents a serious infringement upon the liberty of the applicant, not only because it represents a restriction on his right of free movement, but also because breach constitutes a criminal offence punishable with a term of up to five years' imprisonment, which is greater than the maximum penalty which could be imposed for offences which might otherwise be reflected within the terms of the order. It is, however, a response by Parliament to the increasing concern about the impact on the public of antisocial behaviour in its many constituent forms. It follows that this concern must be reflected in the sentences which the court imposes for breach of the order.”
[16]We are conscious that in Morrison [2005] EWCA Crim 2237, this Court held that if the breach of an ASBO is no more than the commission of an offence for which the maximum penalty is prescribed by statute, it is normally wrong in principle to pass a sentence for a breach calculated by reference to the maximum for breach of an ASBO. With respect, that appears to ignore the impact of antisocial behaviour on the wider public which was the purpose of the legislation in the first place; it also means that antisocial behaviour short of a criminal offence could be more heavily punished than antisocial behaviour that coincidentally was also a criminal offence. We thus prefer the contrary approach of this Court in Tripp [2005] EWCA Crim 2253 which itself reflects Braxton.[17]Braxton is illustrative because it demonstrates that the Court is prepared to uphold long sentences for breach of ASBOs when such are warranted. It concerned repeated, aggressive begging addressed to pedestrians in Birmingham city centre which clearly caused both real concern and distress. The appellant was a man with nine convictions for public order offences and nine convictions for minor violence who had served two years imprisonment for breach of the ASBO imposed on him. He was refused leave to appeal a sentence of 3½ years imprisonment for two identical breaches of the ASBO with 3 months imprisonment consecutive for common assault (also on a pedestrian who would not engage with him) all committed soon after his release from prison. The Court went on (at paragraph 17) “Unfortunately, the applicant still does not appear to understand the nature or effect of the order made against him. The antisocial behaviour order is specifically designed to protect the public from frequent and distressing repeated misbehaviour of the type which is the subject of this order, and the applicant was indeed committing a serious criminal offence, even entering the City of Birmingham within the confines set out within the map served upon him when the order was made. He acted in deliberate breach of that order not once but twice (which led to the four year term reduced to two years) and yet again twice more within weeks of his release from that prison sentence. He must understand that what he might consider as trivial in his case, because of the persistence of his conduct, is now treated seriously, specifically to protect the public. It is thus vital that he address this issue and his behaviour in public if he is to avoid further conflict with the law.”[18]The vital distinction between that case and the circumstances with which we are concerned is that albeit the deliberate and multiple flouting of the order is the same (indeed, there are more breaches of the ASBO in this case), the social impact of this appellant’s offending is very much less and, indeed, did not impact on the public in any way. Save for one occasion when the appellant was drunk (without there being any suggestion that he was causing a nuisance), none of these breaches have resulted from antisocial behaviour as such. The ever longer sentences have been driven only by the determination of the court to ensure that its orders limiting the appellant’s movements are not flouted.[19]We recognize that this is an important objective in itself. An order of the court must be obeyed. We do not accept, however, that being found in a place within the proscribed area without any evidence of associated antisocial behaviour deserves to be visited with a sentence as long as 22 months imprisonment. Where breaches do not involve harassment, alarm or distress, community penalties should be considered in order to help the offender learn to live within the terms of the ASBO to which he or she is subject. In those cases when there is no available community penalty (into which category we include this case given the appellant’s refusal to engage with agencies prepared to help him and the frequency of his breaches), custodial sentences which are necessary to maintain the authority of the court can be kept as short as possible. This approach is consistent with that adopted by the Court in the albeit unrelated area of shoplifting: see Page and others [2004] EWCA Crim 3358 in which the Vice President spoke of the need for proportionality between the sentence and the particular offence.[20]In the circumstances, we quash the sentence of 22 months imprisonment. Bearing in mind the features of the case to which we have referred, including the pleas of guilty, for each of the three offences of breach of the ASBO, a sentence of 2 months imprisonment will be imposed, such sentences to run consecutively and to commence after the two month period of licence which must also be served. The effective sentence therefore is one of 8 months imprisonment. We underline, however, that such short sentences are not appropriate if the breach of the ASBO itself involves harassment, alarm or distress to the public of the type that the legislation was designed to prevent of which Braxton is a good example.