Austin & Ors, R v [2009] EWCA Crim 394

No. 2008/05951/A6, 2008/06252/A6Case No 2008/05963/A6[2009] EWCA Crim 394
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 3 February 2009
The Strand
London
WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE RODERICK EVANS
and
MR JUSTICE WALKER
R E G I N A
- v -
DARREN AUSTIN
WILLIAM MICHAEL SETZDEMPSEY
THOMAS MARTIN COLLISTER
JOSHUA PIEHL
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Miss M Wellfare appeared on behalf of the Appellant Darren Austin
Mr T McCalla appeared on behalf of the Appellant Setzdempsey
Mr O Weetch appeared on behalf of the Appellant Thomas Collister
Mr J Rose appeared on behalf of the Appellant Joshua Piehl
J U D G M E N T
Tuesday 3 February 2009
Between
Austin & OrsDefendantRCrown
[1]These four appellants appeal with the leave of the single judge against custodial sentences imposed upon each of them in the Crown Court at Southwark on 10 October 2008. The indictment to which they entered guilty pleas at various times referred to acts of criminal damage to train carriages at a number of locations in the South-East of England in the latter part of 2006 and the first half of 2007. The damage was caused by spraying graffiti.[2]Count 1 on the indictment alleged against all four appellants a conspiracy to commit acts of criminal damage between 1 January and 6 April 2007. On 4 July 2007, on re-arraignment, Austin and Collister changed their pleas to guilty to that count. The other two appellants, Setzdempsey and Piehl did likewise on 31 July 2007. Each appellant also pleaded guilty to specific allegations of criminal damage to train carriages committed before the start of the conspiracy in count 1. Austin and Collister also pleaded guilty to count 4, which alleged damage to train carriages in East Grinstead on 4 November 2006; to count 5, which alleged damage to carriages at the station at Redhill on 2 December 2006; and to count 6, which alleged damaging property by spraying graffiti in carriages at East Grinstead on Christmas Eve 2006. Setzdempsey and Piehl each pleaded guilty to counts 7 and 8 of the indictment which alleged specific damage to railway carriages on 25 October and 8 November 2006. Setzdempsey also faced an indictment alleging possession of cannabis with intent to supply. He pleaded guilty to that on 26 February 2008.[3]The four appellants were sentenced as follows. Austin, who was 21 years of age, was sentenced to a term of 18 months' imprisonment on count 1 and a concurrent term of nine months on count 4, making 18 months' imprisonment in all. Collister, who was 22 years of age, was sentenced to two-and-a-half years' imprisonment on count 1, and on counts 4, 5 and 6 to terms of nine months' imprisonment on each, to run concurrently with each other and with the two-and-a-half year term, making two-and-a-half years' imprisonment in all. Setzdempsey, who was 19 years of age, was sentenced on count 1 to 15 months' detention in a young offender institution, and on counts 7 and 8 he was sentenced to six months' detention, concurrent on each and concurrent to the 15 month term. He was also sentenced to a term of four months' detention in respect of the offence of cannabis with intent to supply. Therefore his sentence was a total of 15 months' detention in a young offender institution. Piehl, who was also 19 years of age, was sentenced on count 1 to twelve months' detention in a young offender institution, and on counts 7 and 8 to concurrent terms of six months' detention, to run concurrently with the twelve months, making a total of twelve months' detention in a young offender institution.[4]Those who commit acts of criminal damage by painting graffiti often sign their work with a "tag". Some tags refer to an individual painter; others refer to the gang or crew that is responsible for the graffiti. In this case the prosecution alleged that Austin's tag was "Torch" (although in a written basis of plea he denied that); Collister's tag was "Schemes"; Setzdempsey's was "Nois"; and Piehl's was "Skam". Other tags also alleged to have been left at the sites of the graffiti were linked with the appellants.[5]We have seen photographs of the graffiti painted in this case. It is of a sort with which the public, and in particular the travelling public, is all too familiar. It can be intimidating and it blights the environment. Moreover, the financial burdens imposed on the victims of such graffiti are significant. It goes beyond the mere cost of cleaning the daubed trains and carriages. For example, trains are rented at a cost of approximately £1,000 per day; so for every day the train is out of service whilst it is cleaned, there is an accumulating cost. In addition, the cleaning process itself removes not only the graffiti but some of the original paintwork of the carriage. Cleaning reduces the thickness of the paint on the carriage by approximately 25%. The result of that is that the carriage will require re-painting after four to seven years rather than after ten years, which would be the normal period before a re-paint is necessary. The re-paint of a train costs between £40,000 and £60,000. Also of considerable significance is the disruption of the service to the public which train companies provide. The cost of damage and cleaning arising from the attacks which were relied upon to prove the conspiracy in count 1 amounted on the prosecution's case to about £60,000. In written bases of plea each appellant sought to limit his own participation in the overall conspiracy by accepting responsibility for specified attacks. We shall refer to those bases in a moment or two.[6]The prosecution's case was that the four appellants were well known to each other. They readily engaged in spray-painting trains when they were berthed overnight in railway stations. There was evidence of mobile phone contact between the appellants making arrangements to meet in order to engage in this activity. The appellant Austin, in his interview with the probation officer who prepared the pre-sentence report, admitted that he had been party to instigating a number of such attacks. There were found on his mobile phone, and the phones of others, messages from him to others trying to set up attacks of this nature. There was also evidence of the appellants being in each other's vehicles when those vehicles contained paraphernalia relating to spray-painting.[7]During October and November 2006 graffiti attacks took place on trains in Tonbridge (counts 7 and 8), on 25 October and 8 November, causing damage to the value of £3,000 and £4,500 respectively; at East Grinstead (counts 4 and 6) on 4 November 2006 and 25 December, causing damage to the value of £9,500 and £6,500 respectively; and at Redhill (count 5) on 2 December 2006, where damage to the value of £8,000 was caused.[8]On 10 January 2007, Collister was arrested for an offence of criminal damage to a bus. Again that was graffiti-painting. The offence had been committed in the latter part of 2006. He was dealt with for that on a date in February 2007.[9]On 31 January 2007 two people were seen painting a train at Tonbridge. They ran off leaving a rucksack which contained a vinyl glove which had on it a fingerprint of the appellant Piehl. CCTV footage showed Setzdempsey and Piehl were involved in that.[10]On 11 March 2007, at 12.55am, Collister and Austin were seen near the sidings at Selhurst depot. A car belonging to Austin was parked nearby.[11]On 29-30 March 2007 train carriages were attacked at Redhill. All four appellants were identified on CCTV.[12]There were further attacks on railway carriages at Bletchley in early April. Amongst the tags used were "Scheme", "Nois" and "Skam".[13]Eventually all four appellants were arrested near railway sidings in Watford in the early hours of the morning of 5 April 2007.[14]It has been suggested that the graffiti contained no threatening or offensive material. However, it is apparent from a schedule of the graffiti which is the subject matter of this case that that suggestion is not wholly justified. There were offensive and obscene words used in the graffiti.[15]As we have mentioned, each of the appellants entered his guilty plea on a basis. We deal first with Austin. In addition to denying any link to the tag "Torch" (or indeed any other tag), he pleaded guilty to count 4 on the basis that he was involved with others and did not himself commit all the damage. As far as count 1 was concerned, he admitted presence at the attack on the carriages in Redhill at the end of March 2007 and that by his presence he may well have encouraged others to cause damage, but he did not cause any himself. The prosecution alleged that he was more involved in count 1 than he had admitted in his basis of plea.[16]In his written basis of plea Collister accepted that he knew the other appellants and that he was present when damage was caused on 30 March 2007 at Redhill. During the period of the conspiracy in count 1, he admitted that he used the tag "Scheme" and caused damage as illustrated in the photographs which were exhibited. There was no quantification of the value of the damage to which he was party.[17]Setzdempsey pleaded guilty to count 1 on the basis that he had participated in four specific attacks on train carriages: at Hastings on 21 January 2007, at Tonbridge on 31 January 2007, at Redhill on 29 March 2007 and at Bletchley on 5 April 2007. The total value of the damage in which he said he had participated (including counts 7 and 8) was approximately £33,000. Again the prosecution took the view that his participation in the conspiracy was greater than he had admitted.[18]Piehl's pleas were entered on the same basis as those of Setzdempsey. Again the prosecution took the view that he was more heavily involved than he admitted.[19]Although the prosecution did not fully accept the bases of pleas of Austin, Setzdempsey and Piehl, no Newton hearing was held. However, in a conspiracy, where the conspirator knows that the conspiracy to which he is party is wider than his own individual participation, he must when sentenced bear a degree of responsibility for the results of the whole of that conspiracy.[20]Austin had four previous convictions directly relating to graffiti vandalism. At his last court appearance on 18 January 2006 he was made the subject of an Anti-Social Behaviour Order, the terms of which prohibited him from entering railway premises and spray-painting. All his activities which were the subject of this indictment were in breach of that order.[21]Collister had been before the courts on 18 previous occasions for offences including violent disorder, inflicting grievous bodily harm, offences of dishonesty and offences of criminal damage. "The prolific nature of his criminal damage" (to use the words of the author of the pre-sentence report) led in 2003 to an Anti-Social Behaviour Order which Collister breached on three occasions. He was not in breach of that order by the current offending. Only one of his previous convictions was for graffiti-painting on a bus in November 2006. Despite the fact that he was prosecuted and sentenced for that in February 2007, he was not deterred from continuing with his offending.[22]Setzdempsey had no convictions for criminal damage, but he was cautioned for such an offence in 2005. However, since his arrest for these matters he has been before the courts for unrelated offences. In May 2008 he was sentenced to 20 weeks' detention in a young offender institution for possessing a bladed instrument, assault occasioning actual bodily harm and a bail offence. He was released from that sentence on 5 August 2008. Between that date and his sentence he adhered to the terms of his release licence. In relation to the drugs offence, he admitted that he had sold small amounts of cannabis to pay for his own drug consumption. The drug had been discovered in his car following his arrest for these offences.[23]Piehl had no previous convictions, but he had one caution for criminal damage.[24]When passing sentence on the appellants

the judge said:

"This type of offending sickens members of the public who have their travelling lives blighted by this sort of criminal damage and vandalism by graffiti on trains on a massive scale. Sentences of course must be deterrent sentences to send a message out to those who may be tempted to do this for their own gratification."
With those comments we agree. The judge stated that he gave the appellants credit for their guilty pleas.[25]The submission on behalf of each appellant has been that they should receive full credit for their guilty pleas due to the circumstances in which they were entered. Although not guilty pleas were tendered initially to count 1 on the indictment, the prosecution had not by then served all their case papers. In due course, following discussions between counsel as to the bases of pleas, guilty pleas were entered to the conspiracy charged in count 1 and also to specific counts which had until then been the subject of further conspiracy counts. The judge did not state the amount of credit he gave each appellant. In the absence of such an indication, we assume that he gave each full credit. We shall approach sentence on that basis.[26]The pre-sentence reports on each of the appellants contained a common theme: that in the period between their arrest and the date of sentence each appellant had matured and had come to realise the nature of the anti-social conduct in which they had been engaged. They expressed remorse -- some even shame -- at their conduct. The conclusion of the reports was that if custody was not imposed, each was suitable for some form of community order.[27]The sentencing judge was referred to previous decisions of this court in cases of graffiti vandalism. We, too, have been referred to them. Amongst those cases are R v Verdi [2005] 1 Cr App R(S) 42 and R v Dolan and Whittaker [2008] 2 Cr App R(S) 11. Neither is a guideline case. The assistance this court derives from them is limited. However, common to those cases is the conclusion that offending in this way, and in particular on the kind of scale found in this case, passes the custody threshold. We are satisfied, as was the single judge, that in the present case that threshold has been passed.[28]We must consider whether in relation to any appellant the judge should have concluded that, despite the custody threshold having been passed, he could nevertheless impose a non-custodial sentence. If not, whether, in the light of the need for deterrence, the sentence imposed was manifestly excessive, bearing in mind the mitigating circumstances of each appellant.[29]Five days after the four appellants were sentenced, a division of this court presided over by Lord Judge CJ heard an appeal from different appellants who had been sentenced for their part in a conspiracy to damage railway carriages by painting graffiti upon them. (R v Pease and Others [2008] EWCA Crim 2515) They were young men of good character who had pleaded guilty at trial (ie they had entered late pleas). They were sentenced to terms of 24, 18 and 15 months' custody. It can no doubt be said that the extent of the offending in that case was on a greater scale than in this case. But in dismissing the appeals the Lord Chief Justice said this (see paragraph 23):
"Where there is vandalism on this scale we make it absolutely clear that custodial sentences in the range of those imposed here are appropriate, not least because the sentence of the court in this kind of case must have a deterrent element."
[30]Three broad grounds of appeal are raised in the case of Austin. First, on the basis of plea which he entered, he was the least involved and the sentence imposed upon him did not reflect this. Secondly, the result of this is that there is an improper disparity between his sentence and, for example, the sentence imposed on Piehl, who fell to be sentenced on his basis of plea in which he admitted responsibility for more incidents and greater value of damage than Austin. Thirdly, inadequate regard was had to Austin's personal mitigation, which included that he had stopped any involvement in graffiti; that between his arrest and sentence he had been promoted at work; that he had entered into a stable relationship; and that since August 2007 he had been subject to a curfew from 8pm to 6am, which was a considerable restriction on his liberty and which should have been reflected in his sentence. We note in passing that that last point is made also on behalf of Setzdempsey and Piehl.[31]The gravely aggravating features of Austin's case are his previous convictions and the fact that he was subject to an Anti-Social Behaviour Order at the time of his offending. Those features distinguish his case from those of Setzdempsey and Piehl. There is nothing in the complaint about disparity. Nor do we find there to be substance in the submission that Austin was not sentenced consistently with his basis of plea.[32]The matters of mitigation urged upon us were, in our judgment, adequately reflected in the overall sentence imposed upon Austin. We cannot say that the 18 month total sentence is manifestly excessive.[33]There are two grounds of appeal advanced on behalf of Collister. First, it is said that the sentence is excessive in the light of the mitigation available to him. That included, in addition to his guilty pleas, that he only had one previous conviction for graffiti and from August 2007 to the date of sentence he, like the other appellants, had been subject to a curfew and had not committed any offences. In addition, he had been consistently in employment. The second ground of appeal is that there is an improper disparity between his sentence and those of the others. This ground, in reality, adds nothing to the first ground.[34]Giving full credit for his guilty pleas, a sentence of 30 months predicates a starting point of 45 months which in our judgment is too high in this case. Care must be taken that Collister's sentence is not overly influenced by his unattractive record for offending which is of a different nature from that for which he now falls to be sentenced. We consider that a 30 month sentence as a starting point would have been appropriate in his case. Giving him full credit for his pleas of guilty, we reduce the 30 month term to 20 months' imprisonment.[35]Setzdempsey also submits that his personal circumstances and absence of relevant convictions were not given adequate weight by the sentencing judge. Although it is conceded that in one way his having committed offences since the arrest for these offences is an aggravating feature, the fact that his life has changed dramatically is relied upon as a mitigating feature.[36]We remind ourselves that Setzdempsey also faced a drugs indictment -- offending of an entirely different nature from that for which the main sentence was imposed. Looking at his offending and his record, we are unable to say that the sentence imposed upon him is outside the appropriate bracket for sentencing for this kind of offending.[37]Finally, we turn to Piehl. He, too, relies upon his personal mitigation. He, like the others, relies on the fact that a considerable period of time has passed between his arrest (when he was aged 17) and the date of sentence. He, too, was on a curfew and was tagged for a 14 month period. He obtained employment, although he lost that employment, largely, it is said, as he was wrongly arrested because of the malfunction of the tag.[38]We bear in mind the absence of previous convictions, but looking at his offending we are unable to say that the sentence imposed upon him is outside the appropriate bracket and is manifestly excessive.[39]Accordingly, the order in these appeals will be as follows. The appeals of Austin, Setzdempsey and Piehl are dismissed. The appeal of Collister is allowed. We quash the sentence of 30 months' imprisonment and replace it with one of 20 months' imprisonment.