Henry, R. v [2011] EWCA Crim 3051

[2011] EWCA Crim 3051Case No 201104402 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 8 December 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MRS JUSTICE SHARPE DBE
MR JUSTICE POPPLEWELL
Between
R E G I N ACrownv
Between
KAHDEL LEVON ROBERT HENRY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr S Jonas (Solicitor Advocate) appeared for Appellant
J U D G M E N T

LORD JUSTICE PITCHFORD:

[1]On 28 July 2011, at Birmingham Crown Court, this 18-year-old appellant, having pleaded guilty on an earlier occasion, was sentenced as follows: count 1, possession of a prohibited firearm, 5 years' detention under section 91 of the Powers of Criminal Court (Sentencing) Act 2000; count 2, possession of ammunition without a certificate, a concurrent term of 5 years' detention under section 91; and count 3, possession of a bladed article, 12 months' detention, also concurrent purportedly passed under section 91. There was a direction that 91 days spent on remand in custody should count towards the sentence of 5 years' detention. The firearm and ammunition were forfeited under the Firearms Act 1968, as was a knife pursuant to section 25 of the Public Order Act 1986.[2]In addition, the sentencing judge, HH Judge Cullum, imposed an Anti-Social Behaviour Order upon the application of the prosecution for a duration of 10 years. The terms of the order were that the appellant was prohibited from 1) entering Birmingham city centre and areas of Newtown, as were delineated upon a map attached to the order; 2) contacting directly or indirectly, including by electronic means, a number of named individuals.[3]Before we proceed to describe the facts of the matter, we are informed that the sentences imposed upon counts 2 and 3 were unlawful, since the maximum sentences for those offences were 5 years and 4 years respectively. Accordingly, jurisdiction to pass a sentence under section 91 of the Sentencing Act 2000 was not available to the court. It is clear that the judge intended the principal sentence to be imposed under count 1 and he did not intend any further sentence imposed on the remaining counts to be of any additional effect. In the circumstances, we shall quash the sentences imposed on counts 2 and 3, and will substitute for them concurrent terms of 4 months of a Detention and Training Order under section 106A of the Sentencing Act 2000, our understanding being that the only effective sentence in the circumstances of this case will be that passed upon count 1, against which there is no longer any appeal.[4]The circumstances in which these convictions were attracted are as follows. As about 1.50 pm on 18 April 2011, police officers were called to Birmingham city centre in consequence of an alleged robbery. When they arrived, they found a number of youths in the area, including this appellant. It was noticeable that the appellant attempted to avoid the officers. After a struggle, he was stopped and it was seen that the appellant was wearing a pouch. The appellant shouted at one of his companions to take the pouch. Found inside was a Russian Baikal self-loading pistol, originally manufactured to discharge irritant cartridges, but modified to fire 9 mm short-barrelled bullets. There were seven cartridges within the pistol which were capable of being fired from it. The weapon had grooving engineered into it that would have enabled a silencer to be fitted.[5]This is a renewed application for leave to appeal against the Anti-Social Behaviour Order imposed at the Crown Court. There are three grounds advanced on behalf of the appellant by Mr Jonas. First, that the order was unnecessary; second, that it was drawn too widely; and third, that it was imposed for an excessive period.[6]The judge considered the need for an order in his judgment at a Newton hearing, held to resolve the question whether the appellant had taken the weapon into Birmingham city centre or whether he had picked it up from the floor of a shop, it having been left there by one of his companions. The judge considered the need for an order at page 4 of the transcript of his remarks in the Newton hearing:
"Notwithstanding the lengthy custodial sentence that is bound to follow, I am satisfied that this is a proper tool that the Crown Court should consider. It is part of the Crown Court's ability to attempt to assist with the dismantling of gang culture and the gangs within Birmingham, but there are proper considerations that need to be made and are rightly urged upon me by Mr Jonas to consider the step by step approach that has to be taken. I have heard evidence from DCs Scott and Smith in relation to the general question of gang culture: the fact that there is intelligence that this defendant and others are affiliated with gangs which are in turn affiliated with each other."
[7]The judge went on to consider whether the appellant's behaviour was likely to cause harassment. He said at page 5, letter D:
"This was a loaded serious weapon, ready to be fired in the centre of Birmingham in a very populous area. I am quite satisfied that there was a very real prospect of events taking a turn that there would be like to cause harassment, alarm or distress by the taking of that weapon, loaded, ready to fire into the city centre of Birmingham. Therefore, I am satisfied that the first criteria is fulfilled."
[8]As to necessity,

the judge said:

"The position is that this defendant accepts in the pre-sentence report that he has when younger been attracted to gang culture. He was involved in the attraction through older family members. He had been associating with other known gang members, and notably on one occasion met with people who may have committed a stabbing, made their way to his address where he was. He was not implicated in that stabbing. He has also been linked to, by my finding, the possession and not momentary possession of this handgun, which in itself was linked to an active shooting. I am quite satisfied that the intervention of the Criminal ASBO is appropriate to assist in the dismantling of gang culture and in the prevention of further anti-social behaviour by this defendant. He has two convictions: one for the possession of an offensive weapon in November 2009 and the second for possession of an air weapon in May 2010."
[9]As to proportionality, the judge concluded that it was reasonable to exclude the appellant from Birmingham city centre, since he was sure that other named individuals were also members of the appellant's gang culture who were also susceptible to an ASBO and the appellant should be prohibited from communicating with them.[10]The judge finally posed the question whether, having regard to the custodial sentence which he intended to impose, the issue of the appellant's future behaviour should be left to the consideration of licence conditions before he was released from his custodial sentence. The judge observed only that the gravity of the present matter was such that licence conditions would not suffice.[11]We say immediately that the offences of which this young man was convicted were extremely serious, involving as they did the carrying of a loaded firearm in a city centre. Having read the material upon which the recorder was acting, we have every sympathy with the determination of the constabulary in Birmingham to bring an end to the gun and gang culture which, in some parts of Birmingham, permeated. The harm which such culture does, primarily to individuals but also to the community, is such that every possible means should be used to prevent its spread. This young man's life will undoubtedly be blighted by it unless he takes upon himself the responsibility to determine that he will not in future embrace it.[12]Mr Jonas submits that the order was, having regard to the length of the custodial term, unnecessary for an offender of this age. Our attention was drawn in particular to the case of R v P [2004] 2 Cr App R (S) 63 at page 343 (Woolf LCJ, Henriques J and Richards J). Henriques J, giving the judgment of the court, pointed out that it was simply not possible for the court to determine that an order was necessary to protect the public at some future date after the very young defendant in that case had been ordered to serve 3 years' detention for a series of robberies. A similar conclusion was reached in R v Kirby [2005] EWCA Crim 1228. The defendant in that case was aged 29. He was sentenced to 25 months' imprisonment for serious driving offences. David Clarke J said it should not be assumed that an ASBO would be necessary once a substantial sentence had been served.[13]On the contrary, the court in the appeal of R v Parkinson [2004] EWCA Crim 2757 declined to interfere with an ASBO in the following circumstances. The defendant was aged 19 and had been convicted of robbery, but unlike in the case of P, he had an extensive criminal record. There was evidence of previous persistent anti-social behaviour, and the court upheld a custodial sentence of 3 years, followed by an Anti-Social Behaviour Order of 2 years' duration. In doing so, the court stated:
"It is apparent that in this appellant's case almost every means of sentencing him has been tried with apparent lack of success. He has served custodial sentences on four occasions, although not for as long as three years. In the present case he will be eligible for release after eighteen months."
[14]Each case, we observe, must of course depend upon its own particular facts. We have no difficulty in endorsing the judge's reasons for imposing a stiff custodial sentence. Having imposed a period of detention of 5 years on a young man of 18, we consider that compelling reasons would have been required to impose an ASBO, let alone an ASBO with a 10-year duration. The reasoning underlying the decision of the judge is that 2 1/2 years in custody, followed by an equal period of supervision on licence, would not be enough to protect the public from this appellant's similar offending. We accept that, if there had been a history of disobedience to court orders, that would have been a legitimate approach. We acknowledge that this was the third time that this young man had been found in possession of a weapon, but never before had he received a custodial sentence. We do not think that such compelling material existed which justified the judge's imposition of an ASBO in the present case, and for that reason we shall grant leave and the order will be quashed. We have already mentioned an adjustment of the sentence in respect of counts 2 and 3. To that extent alone, the appeal is successful.