Gowan, R. v [2007] EWCA Crim 1360

Case No 200700162/A6[2007] EWCA Crim 1360
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 19th April 2007
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrown-v-
Between
JASON GOWAN
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 S DONOGHUE appeared for APPLICANTMR J DAVIES appeared for CROWN
J U D G M E N T
[1]MRS JUSTICE SWIFT: On 17th November 2006, in the Crown Court at Merthyr Tydfil before His Honour Judge Curran, the applicant pleaded guilty to offences of making a threat to kill (count 3), dangerous driving (count 4), driving whilst disqualified, (count 5) driving a vehicle without insurance, driving a vehicle when above the alcohol limit and possession of a Class B controlled drug (amphetamine). Further counts of attempting to cause grievous bodily harm with intent (count 1) and assault occasioning actual bodily harm (count 2) were ordered to remain on the file on the usual terms.[2]On 1st December 2006 the applicant was sentenced as follows: for the offence of making a threat to kill (count 3) a sentence of imprisonment for public protection was passed under section 225 of the Criminal Justice Act 2003. The judge ordered that he should serve a minimum term of 18 months, ie half the appropriate determinate sentence of 3 years. He gave a direction under section 240 of the 2003 Act that the 67 days which the applicant had spent on remand was to count towards his sentence. For the offence of dangerous driving, a determinate sentence of 18 months' imprisonment was imposed to run concurrently with the sentence on count 3.[3]In addition, the applicant was disqualified from driving for 5 years with a requirement that he should pass an extended driving test before driving again. Concurrent sentences of 4 months' imprisonment were imposed in respect of the offences of driving whilst disqualified and driving with excess alcohol. For driving his vehicle without insurance, his licence was endorsed and penalty points were imposed. No separate penalty was imposed for his possession of amphetamine.[4]The judge also made an Anti-Social Behaviour Order (ASBO) under section 1C of the Crime and Disorder Act 1998, prohibiting the applicant from having any contact with the complainant, who was his wife, or going within 200 metres of the house where she lives. Although we have not seen the written order, it appears that the terms provided for the effect of the order to be suspended until the applicant was released from custody.[5]The applicant's application for leave to appeal against sentence has been referred to the Full Court by the Registrar, who granted an extension of time of 6 days in which to apply for leave. The applicant does not seek to appeal against the sentence of imprisonment or any other features of the sentence. His application is directed solely at the imposition of the ASBO.[6]The facts of the case are these. In the evening of 27th September 2006, police were called to the applicant's home in Porth by neighbours who heard the sound of a violent disturbance there. The applicant shared the house with his wife, Donna Gowan, and their three children. At about 11.50 that evening the applicant was seen to leave the property, obviously in a rage and shouting insults at his wife. He was plainly under the influence of drink and possibly drugs. He then got into his motor vehicle, despite his inebriated state and the fact that he was disqualified from driving at the time. He drove the vehicle into parked cars belonging to a number of his neighbours, causing serious damage to them. The police arrived and arrested him near to his car. As he was arrested, the applicant attempted to put some amphetamine in his mouth but was stopped from doing so by the police.[7]While in police custody, the applicant was aggressive and violent. He threatened to kill his wife and to burn her inside her house. He told the police that he was not just threatening to kill his wife; it was a promise.[8]The complainant had been punched, kicked and stamped on by her husband in the course of a violent quarrel. As a result, she sustained injuries which required hospital treatment. She was initially reluctant to make a complaint against her husband but made a witness statement to the police 2 days after these events. In it, she said that she had been subjected to a violent attack by the applicant, part of which had taken place in front of the couple's children. She later retracted this statement, however, and, in a further statement dated 4th October 2006, said she did not want to pursue the matter and would not attend court to give evidence. By this time she had become reconciled with her husband and was visiting and telephoning him regularly in prison where he was being held on remand.[9]As a consequence of Mrs Gowan's attitude, when the matter came to court, the prosecution signified its intention not to proceed with counts 1 and 2, which were dependent on her evidence and applied for them to remain on the file on the usual terms. The judge was not asked to approve this course and indicated that, had he been he asked to do so, he would have declined. As we have said, the applicant pleaded guilty to the remaining offences on the indictment. The applicant, who is 30 years old, has a substantial criminal record, including convictions for indecent assault, criminal damage, affray, arson, common assault and numerous offences associated with motor vehicles. In December 1999, he was sentenced to 4 years' imprisonment for an offence of causing grievous bodily harm with intent. In assessing the dangerousness under the 2003 Act, the judge took into account the circumstances of the recent offences as well as the applicant's previous convictions. He concluded that the applicant was clearly a dangerous and violent man, who was frequently in a state of aggression. Accordingly an indeterminate sentence was appropriate. The judge took into account the applicant's guilty pleas, which had been made at the earliest opportunity, together with the mitigation put forward by his counsel. He said that, had he been minded to pass a determinate sentence, the applicant would have received 3 years. Accordingly, the minimum term to be served would be 18 months. The judge then gave a direction under section 240 of the 2003 Act that the 67 days spent on remand was to count towards his sentence. We should make it clear that, in accordance with the guidance on the operation of section 240 given by this Court in the case of R v Gordon & Ors [2007] EWCA Crim 165, the specified minimum term of 18 months will be reduced by the period of 67 days spent on remand.[10]During the sentence hearing the judge indicated that he proposed, of his own volition, to make an ASBO. Counsel for the applicant sought to dissuade him from that course, pointing out that Mrs Gowan had not requested such an order and that, since it was known the couple were in continuing contact, it was clear she did not desire the protection of such an order. He argued also that it was wrong in principle to make an ASBO prohibiting contact between a married couple who wished for such contact. Nevertheless the judge made an order in the terms previously referred. The order was to remain in force until further direction of the court and the judge indicated that he would consider any future application to discharge or vary it. Following the sentence hearing, Mrs Gowan was told by the prison authorities that she could no longer visit the applicant. She contacted the applicant's solicitors, seeking discharge of the ASBO. She made a section 9 witness statement in which she said it was her wish to resume cohabitation with her husband on his release from prison. Meanwhile she wished to continue to visit him in prison. An application was made on 9th January 2007 before the same judge to discharge the ASBO. The judge did not discharge it but instead amended it so as to provide that the applicant should not contact his wife, except during the course of visits or telephone calls made by her to any custodial establishment in which he was detained. The judge indicated that any further application to vary the ASBO would have to be dealt with following the applicant's release from prison. Section 1C of the Crime and Disorder Act 1998 provides:
"(2) If the court considers- (a) that the offender has acted at any time since the commencement 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 (our emphasis); 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."
For the applicant, Mr Donoghue's primary submission is that the judge had no power to make an ASBO in the circumstances of this case. The applicant's violent conduct had been and is likely in the future to be directed against his wife who was of the same household as himself. Therefore, his conduct fell outside the terms of section 1C2(a). He submitted that section 1C(2) was plainly directed at protecting members of the general public from an offender's conduct and was not intended and could not be used to protect a wife with whom an offender had been and would in the future be cohabiting. At the hearing before this Court, prosecuting counsel accepted the contentions made by Mr Donoghue. We have considerable sympathy for the judge in this case. He was striving to protect the complainant from the position of risk in which she was undoubtedly placing herself by resuming her relationship with the applicant. Nevertheless we accept Mr Donoghue's submission. It is clear from terms of section 1C(2) that it was never intended that an ASBO should be made in circumstances such as those in this case. We are satisfied that the judge had no power to make the order. We therefore give leave to appeal and allow the appeal by quashing the ASBO. That does not mean that upon the applicant's release from prison, his wife will be left without any protection. On the contrary, when he is released, he will be on licence and subject to the possibility of a return to custody if he re-offends. The knowledge that he is on licence and at risk of recall to custody will, in our view, provide a deterrent against criminal behaviour every bit as powerful as the fear of the consequences of breach of an ASBO.