Donnelly, R. v [2007] EWCA Crim 2548

Case No 2007/04308/A7[2007] EWCA Crim 2548
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday 15 October 2007
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE HEDLEY
and
MR JUSTICE CALVERT-SMITH
__________________
- v -
Between
IAN DONNELLY__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________Mr T W Brennand appeared for ApplicantMr A S Longworth appeared for Crown____________________Judgment
[1]This is an application for leave to appeal against sentence which has been referred to the full court by the Registrar against sentences imposed on the applicant by His Honour Judge Khokhar sitting in the Crown Court at Minshull Street, Manchester, on 20 July 2007.[2]Following a contested trial, the learned judge had to sentence the applicant for offences of having a dog dangerously out of control which caused injury. He also had to deal with the breach of an Anti-Social Behaviour Order passed on 9 March 2004 relating to an injury by the same dog. Further, he had to deal with a like offence after a guilty plea had been entered on 25 May 2006, which again related to the same dog, and he had to deal with a breach of conditional discharge which relates back to the same matter as the Anti-Social Behaviour Order. In the circumstances the learned judge passed sentences of eight months' and four months' imprisonment, to run consecutively to one another, but the total was suspended for a period of two years. He imposed a supervision requirement for twelve months pursuant to section 213 of the Criminal Justice Act 2003; he imposed a disqualification from keeping a dog for a period of ten years under section 4 of the Dangerous Dogs Act 1991; and he also ordered the destruction of Zak (the relevant dog) under the same statutory provisions.[3]The applicant lives on his own. For many years he has kept German Shepherd dogs, and indeed has shown them. He has a long history of discord with neighbours which, in fairness to him, is not all of his own making. Not only is he from time to time the target of unwelcome attentions from local youngsters, but he was in 1998 the victim of a serious assault. The applicant has shown himself to be devoted to his dogs, and indeed they provide comfort to his life.[4]This court, as was the judge, is concerned with three incidents. On 9 March 2004, the applicant pleaded guilty to four offences of having a dog dangerously out of control. This related to Zak, and to an incident when Zak had got out and bitten four people who had come to the door of the applicant's house. For those matters the applicant was made the subject of a conditional discharge and an Anti-Social Behaviour Order.[5]The second matter to which the applicant pleaded guilty occurred on 4 May 2005. A teenage boy had come to his door asking for the return of his football. It was a matter of disturbance to the applicant who regularly had footballs kicked into his premises. On this occasion Zak got out and inflicted several bites on this boy who endeavoured to hide behind some scaffolding. The result of the bites was that the young man required some hospital treatment. The applicant pleaded guilty to that matter in May 2006, and the sentence was adjourned.[6]The third matter (which was the subject of the trial) occurred on 18 August 2006. A neighbour went to the applicant's door with the intention of remonstrating with him over some dispute about children. Zak got out (as did the other dog), chased the neighbour and, when he fell to the ground, bit him severely about the arm.[7]Inevitably the offence of 4 May 2005 put the applicant in breach of the conditional discharge, and the offence of 18 August 2006 also put him in breach of the Anti-Social Behaviour Order.[8]Mr Brennand, who has addressed us most helpfully and cogently on behalf of the applicant, divided his submissions into three parts, namely the penalty of imprisonment, the penalty of disqualification, and the order for destruction.[9]So far as the imprisonment is concerned, Mr Brennand concedes that a custodial sentence was in principle justified in these circumstances. He invites our attention to the decision of this court in R v Cox [2004] EWCA Crim 282. It is apparent from that decision that the aggravated form of the offence of which the applicant had been convicted is one that is to be taken seriously by the court, which is to have as much regard to consequence as to intention. In those circumstances we can well see why Mr Brennand realistically concedes that a custodial sentence was not wrong in principle. In fact, the learned judge suspended that sentence with a supervision order. However, Mr Brennand submits that the sentences were too long in all the circumstances.[10]The sentencing exercise confronting the learned judge was a difficult one because there is always the balance to be struck between the public interest on the one hand and the culpability of a defendant on the other. Moreover, the learned judge did not have much guidance in terms of the range of sentences available to him. He had to work them out from basic principles. Mr Brennand draws our attention to the fact that the applicant, other than the matters to which we have made reference, did not have any material convictions. He referred to the fact that this all related to one dog and that no complaint could be made about the other dog so far as public safety was concerned.[11]We have considered those submissions with care and we think there is merit in them. We think that the nominal term of the sentence was a little longer than it needed to be in the circumstances. We observe that sections 181 and 189 of the Criminal Justice Act 2003 require the sentence to be expressed in weeks. We therefore propose to vary the sentence by directing that the sentence of eight months shall be reduced to 28 weeks, and the sentence of four months shall be reduced to seven weeks. It is right and proper that the sentences should be made to run consecutively. Accordingly, we conclude that the proper sentence of imprisonment was one of 35 weeks' imprisonment. That will be suspended on the terms specified by the learned judge, both as to duration and as to the applicability of the supervision requirement under section 213 of the Criminal Justice Act.[12]We turn to the question of disqualification. The learned judge was greatly exercised about the public safety implications of this case. Mr Brennand has endeavoured to offer some assistance to the court by drawing parallels with the practice of disqualification in driving cases. It would be extremely unwise to try to link the two, but the principle of disqualifications not being unnecessarily long and not impeding the pursuit of lawful activities are matters we would have in mind, and we would have in mind the significant history of the proper control of dogs as well as the serious failings that have been identified in this case. In all the circumstances we think that there is merit in the complaint that this disqualification was too long. Having regard to the matters that we have identified and the age of the applicant, we are willing to reduce the disqualification to one of three years.[13]We turn to the issue of destruction. It is important that the statutory regime is borne in mind. Section 4(1) of the Act provides:
"Where a person is convicted of an offence under section 1 or 3(1) or (3) above or of an offence under an order made under section 2 above the court -- (a) may order the destruction of any dog in respect of which the offence was committed and shall do so in the case of an offence under section 1 or an aggravated offene under section 3(1) or (3) above; ...."
[14]This offence fell within the aggravated provisions and therefore destruction was mandatory unless subject to the provisions of section 1A. Section 1A so far as is material to this case provides:
"Nothing in subsection (1) above shall require the court to order the destruction of a dog if the court is satisfied that the dog would not constitute a danger to public safety."
[15]The learned judge heard evidence from an experienced person of veterinary qualifications, Miss Sarah Heath, to the effect that, although Zak was likely to bite, the reasons for his doing so were not inherent to him, but because of the way in which he was kept, and therefore it would be wrong in the circumstances to order the destruction of the dog on the basis that it related to the care the dog had received rather than its inherent nature. The learned judge, who was conscious of the fact that these destruction provisions are fundamentally provisions for the protection of the public, took the view that he had to look at the position as it actually was. He had to consider whether Zak, in the condition in which he was and having regard to the circumstances in which he lived, constituted a danger to public safety. He concluded that it had not been shown that the dog would not constitute a danger to public safety. In our judgment that was a conclusion to which not only was he entitled to come, but was clearly right to come in all the circumstances that we have set out. We do not propose to interfere with that part of the order.[16]Accordingly, we grant leave to appeal against sentence, we vary the sentence of imprisonment from twelve months to 35 weeks, but with the same terms as to suspension and supervision; we vary the disqualification order from ten years to three years; and we uphold the order under section 4 in relation to destruction. To that extent this appeal will be allowed.[17]MR BRENNAND: My Lord, there is one final matter. The appellant is here in person. He has taken a modest loan from the Department of Social Security to travel here. Might I ask for a defence costs order simply limited to reimburse his travel costs?

LORD JUSTICE PILL: What about a representation order?

[19]MR BRENNAND: My Lord, there is a representation order. The application is limited to his travel costs, which I would ask to be refunded.

LORD JUSTICE PILL: Can you assist, Mr Brennand, because it is unusual? On an application there is no right to be present. On the other hand, we have proceeded as we said we would proceed to hear the appeal if leave was granted. We are minded to say that his transport costs are refunded. We are minded to assess them here and now if you can tell us what they are?

[21]MR BRENNAND: It is £36, my Lord.

LORD JUSTICE PILL: Yes, the sum of £36 is granted.

[23]MR LONGWORTH: My Lord, I would invite the court to consider whether the appellant should pay the costs of keeping the dog pending destruction? The costs, since the order on 20 July are £870 for the upkeep of the dog, and will increase at £10 per day. I make the application, otherwise the costs will have to be paid from the public purse.

LORD JUSTICE PILL: What about Lulu?

[25]MR LONGWORTH: Lulu has been kept at public expense. I make no application in respect of that dog. The appellant will have to make his own arrangements in relation to her. The application is in respect of Zak. It is £870 to date from the order made by His Honour Judge Khokhar and until the date of destruction.

LORD JUSTICE PILL: What about before the date of the order?

[27]MR LONGWORTH: The costs were £10 per day.

LORD JUSTICE PILL: But you do not claim that? I am not encouraging it, but I would like to know the ground on which we stand.

[29]MR LONGWORTH: My application is based entirely upon section 4 of the Act.[30]MR JUSTICE HEDLEY: Mr Longworth, I think -- and I shall be corrected if I am wrong -- that such an application was made to the learned judge who refused it?[31]MR LONGWORTH: It was.

MR JUSTICE HEDLEY: He refused it simply on the basis that the appellant had no means?

[33]MR LONGWORTH: Yes.

MR JUSTICE HEDLEY: There was no other basis for refusal?

[35]MR LONGWORTH: That is correct.

LORD JUSTICE PILL: Mr Brennand?

[37]MR BRENNAND: My Lord, all I would say is this. Firstly, he has very, very limited means. Secondly, my Lords have some appreciation of the background of this appellant and the zeal with which he has pursued his constitutional rights to test matters before this court.

LORD JUSTICE PILL: Did the judge hear evidence of means?

[39]MR BRENNAND: He accepted what was contained in the body of the pre-sentence report.

LORD JUSTICE PILL: Which is what you are contending now?

[41]MR BRENNAND: That is right.

LORD JUSTICE PILL: We will consider that in a moment. Mr Brennand, the disqualification will run from the date of the judge's order, but the appellant had been without the dogs for some time before that?

[43]MR BRENNAND: Yes.

LORD JUSTICE PILL: Unless persuaded by you, we do not consider that that counts towards the three years. It is not like a remand in custody.

[45]MR BRENNAND: No.

LORD JUSTICE PILL: You accept that?

[47]MR BRENNAND: Yes, I do. (The court conferred)

LORD JUSTICE PILL: Mr Longworth, we are not minded to make a further order. We are grateful to you both for your helpful submissions. _______________________________