McGhie, R. v [2007] EWCA Crim 1085

Case No 200605411/A7[2007] EWCA Crim 1085
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17th April 2007
Strand
London, WC2
B E F O R E:
MR JUSTICE RAMSEY
SIR RICHARD CURTIS
Between
R E G I N ACrown-v-
Between
STUART MCGHIE
Computer Aided Transcript of the Stenograph Notes ofA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J NEWTON-PRICE appeared for APPELLANT
J U D G M E N T
[1]MR JUSTICE RAMSEY: On 13th September 2006, at West Dorset Magistrates' Court, the appellant pleaded guilty and was committed to the Crown Court for sentence. On 6th October 2006, at the Crown Court at Dorchester, Mr Recorder Fraser passed a sentence on each of two offences, which were breaches of Anti-Social Behaviour Orders, of two years' imprisonment on each concurrent. Having committed an offence before the expiry of the full term of an earlier sentence of imprisonment, he was also ordered to return to custody to serve 250 days of the remaining period of 320 days under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to be served before the sentence for the instant offence.[2]He appeals against sentence by leave of the single judge.[3]On 15th February 2007 the Full Court adjourned the hearing of this appeal. It ordered a psychiatric report and directed that the Crown be given notice of the appeal and be at liberty to make written representations as to the lawfulness or otherwise of the order for return to custody under section 116. We have learnt today that the Crown accept that the return to custody under section 116 was not a lawful sentence.[4]The appellant in this case suffers from what has been described as a bizarre compulsion. He derives sexual satisfaction from displaying a £20 note which he hangs from a pocket in the hope that teenage girls will take it. Such was the persistence of this behaviour that he was made the subject of an Anti-Social Behaviour Order on 30th July 2002 with the following prohibitions:
"1. In a public place allow any bank note in his possession, custody or control to be visible to any other person. 2. Engage in behaviour or conduct which causes harassment, alarm or distress to any person. 3. Seek or encourage contact or communication with any female under the age of 18 years."
[5]On 9th September 2006 the appellant followed a 15 year old girl from a bus stop in Weymouth. She noticed that he had a £20 note hanging from his pocket. When she pointed this out to him, he said, "I know, thanks." She spoke with a friend in the park and they noticed that the appellant was watching them from behind a bush. He then followed the girl home and watched her house from behind a bush.[6]On 11th September 2006 he followed the same girl whilst she was on her way to school. She was with the same friend as before. Both girls saw he had a £20 hanging from his pocket and whilst he stood at traffic lights he leaned past people in order to keep the girl in view. She became so distressed that she called the police and ran into a friend's house. The appellant was subsequently arrested.[7]In passing sentence the Recorder properly stated that the appellant had admitted these two breaches of the Anti-Social Behaviour Order. Both offences concerned the same 15 year old girl and she was very distressed as a result of his actions.[8]The Anti-Social Behaviour Order, as the Recorder pointed out, was originally made on 30th July 2002 after the appellant had offended in a similar manner on seven different occasions. The Recorder said that what was done on this occasion was extremely upsetting and the appellant appeared unable to remedy this type of behaviour. The Recorder said that his behaviour was in flagrant disregard to the terms of the order which was specifically designed to protect teenage girls from this sort of distressing behaviour.[9]The Recorder considered that the recommendation in the pre-sentence report for a suspended sentence order and treatment did not place sufficient emphasis on the protection of the public. Accordingly, he passed a sentence of two years, together with the order that there was to be 250 days of the unexpired portion of the previous sentence served first.[10]The grounds of appeal are that the totality of the sentence was manifestly excessive and failed to reflect the limited nature of the appellant's behaviour, which, although distressing and persistent, was always limited in its scope because there was never any physical contact. It was said that insufficient credit was given for the guilty plea, for the full admissions and for his recognition that he had a compulsion that required treatment in some form. In addition, there is, as we have indicated, the question of the lawfulness of the section 116 order.[11]There are two aspects to this appeal. First, there is the sentence of two years for the breach of the Anti-Social Behaviour Order and, secondly, the order that the appellant be ordered to return to prison to serve 250 days of the unexpired portion of the previous sentence.[12]In relation to the first aspect there have been four breaches of this Anti-Social Behaviour Order and the previous sentences have included community orders and periods in custody. Indeed, on the last previous occasion a period of two years' imprisonment was imposed.[13]This court has now seen a report from Dr Daniel Allan, which was obtained when this matter was previously before this court in February of this year. The Recorder did not have the advantage of such a report. Dr Allan recommends therapy along the lines set out in the pre-sentence report.[14]We have considered both the pre-sentence report and what Dr Allan has now said. We consider that this is a case where the sentence of immediate custody has in the past been shown to have failed and where on the matters before this court the appellant has not been given any proper treatment as recommended both by the probation service and now by Dr Allan.[15]The sentence of two years for the breach was, we consider, manifestly excessive and wrong in principle in these circumstances. Rather this court considers that the appropriate sentence is one of nine months' imprisonment suspended for two years, with a two year supervision requirement and a condition that the appellant attends the Thames Valley Sex Offender Groupwork Programme as identified in the pre-sentence report and in the report of Dr Allan.[16]We now turn to the second aspect in relation to the order that the appellant should be returned to custody to serve 250 days of the remaining period of 320 days under section 116. It is now accepted by the Crown that this is an unlawful order. It is noted, as set out recently by the President in R v Gordon [2007] EWCA Crim 165, that the court does not have jurisdiction to order a person to serve any of the remaining period of his previous sentence when, as in this case, both offences were committed after 4th April 2005. Accordingly, we quash that part of the order which required the appellant to return to custody.[17]Finally, this is a case where both the single judge and this court in February 2007 raised concerns about the terms of paragraph 1 of the Anti-Social Behaviour Order because it prevents the appellant in a public place from allowing "any bank note in his possession, custody or control to be visible to any other person". On the basis that the appellant in this case undertakes to submit a ground appeal based on this position, this court would grant leave and would then be minded to order that paragraph 1 of the Anti-Social Behaviour Order of 30th July 2002 should be deleted, but the other two paragraphs would stand. In those circumstances, if it were thought by the local authority that some paragraph to replace paragraph 1 were necessary, then the local authority could, as they did before, make an application to the relevant court.[18]In all the circumstances, therefore, this court allows the appeal and substitutes for the two year sentence a nine month suspended sentence order suspended for two years with the two year supervision requirement and the condition that the appellant attends the Thames Valley Sex Offender Groupwork Programme.

MR JUSTICE RAMSEY: I understand that you would undertake to file an application.

[20]MR NEWTON-PRICE: I will give that undertaking.[21]MR JUSTICE RAMSEY: On that basis the court gives leave for that extra ground to be added and makes the order that we have indicated the court would make.[22]MR NEWTON-PRICE: Thank you very much.[23]MR JUSTICE RAMSEY: Yes. (To the Appellant). Could you stand up, please? This court has now suspended the sentence. It has given you a nine month suspended sentence order. The order, which is suspended for two years, is subject to a supervision requirement for two years and also a requirement that you attend the relevant course during that period. Also if you at any time in the United Kingdom commit another offence you will then be in breach of that suspended order and you will be brought back before the court, and, in addition to the sentence for the further offence, you will be liable to be sentenced for the suspended sentence that you have had imposed today. Do you understand that?[24]THE APPELLANT: I do, yeah.[25]MR JUSTICE RAMSEY: Yes. Thank you very much.