England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE DUTTON
CHESTER CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th October 2003

Lord Justice Mantell:

 

1. In the early hours of 30^th November 2001 a TVR Tuscan car was broken into and a CD player stolen. Someone saw it happen and got in touch with the police. Following a search Peter Belli and another man were found hiding in a field. Both were wet and wearing gloves. Belli made no comment in interview. He was not charged but bailed pending further enquiries.
2. Sometime before 3^rd January 2002 police received a report that a terraced cottage in Knutsford had been broken into. It emerged that the owner was away on holiday. Further investigation showed that the premises had been ransacked with drawers having been emptied and their contents strewn about. The television aerial cable and telephone line had been cut. A quantity of property valued altogether at £250.00 had been taken. Blood was found at the scene the DNA of which matched Belli's. Belli was rearrested on 24^th June 2002. In interview he said he could not remember committing the offence but that he had been on drugs at the time. He was charged with the earlier theft and burglary. Once again he was released on bail.
3. On 27^th October 2002, while still on bail, Belli went to a pharmacy to collect his methadone prescription. He made use of the opportunity to steal toiletries valued at £36.00. Unfortunately for him the theft was recorded by the CCTV camera. When Belli returned the next day he was arrested.
4. For these various offences to which he pleaded guilty before magistrates, Belli was committed for sentence to the Crown Court at Chester. He continued on bail. On 5^th November 2002 he failed to surrender to his bail. It was not until 4^th February 2003 that he fell to be dealt with for all matters including the failure to surrender. In the event he was sentenced to a total of two years nine months imprisonment.
5. In imposing that sentence the learned judge considered and rejected a suggestion that Belli might be made the subject of a Drug Treatment and Testing Order (DTTO) notwithstanding that the court had been supplied with reports indicating that Belli was a suitable candidate. The pre-sentence report remarked the offences had been committed during a period in which the appellant was routinely using high levels of tranquillising medication in addition to methadone prescribed by the Community Drugs Team. He was also buying heroin on the street. The author stated that Belli wished to achieve long-term abstinence from illegal drugs and that he recognised that his drug use caused his offending. It was pointed out that he had not received a community disposal since 1992. It was noticed that previous custodial sentences seemed to have little impact on Mr Belli's offending and that a further such sentence would do little to assist him in addressing his drug use. The DTTO assessment informed the court that Belli had shown a sufficiently high level of motivation to suggest that he could respond to the rigorous demands of the order. It proposed a twelve-month order with a minimum of two tests per week as deemed appropriate by the Supervising Probation Officer. Amongst other material available to the sentencing judge was the record of Belli's previous offending which dated back to 1989, when he would have been a teenager, and which included numerous offences including robbery and possessing an imitation firearm. There were also many convictions for theft.
6. In passing sentence the judge stated:

"I have to decide what is the appropriate way of dealing with your case. It is clear that drugs are at the root of your problem and the Probation Service feel that there is resolution now by you to address that issue and they propose a Drug Treatment and Testing Order in your case, and I have to think very carefully as to whether that is appropriate. Having done so, I fear I am resolutely of the view that these offences and particularly the burglary offence is so serious that only an immediate custodial sentence would in any way appropriately reflect what has happened. It would be quite wrong in my view for a sentence of any thing other than custody to be imposed in those circumstances."

7. Belli sought and was granted leave to appeal. The matter came before the court on 1^st September 2003 when we allowed the appeal, quashed the sentences of imprisonment and substituted a Drug Treatment and Testing Order. We reserved our reasons, which we now give.
8. We begin by saying that since the date of sentence a further report has been prepared dated 20^th June 2003 in which it is noted that the appellant has done well whilst in prison and has shown a clear determination to rebuild his life and to break free from drugs. He has provided three mandatory drug tests and nine voluntary tests, all of which have proved negative. The report strongly supports the substitution of a DTTO by this court.
9. The statutory provisions relating to DTTOs are contained in sections 52 to 57 of the Powers of Criminal Courts (Sentencing) Act 2000. They have been considered by the Divisional Court in R (on the application of the Inner London Probation Service) v Tower Bridge Magistrates'' Court [2002] Cr.App. R(S) 43 (p.179) and by this court most importantly in Kelly [2002] EWCA Crim 2060, [2003] 1 Cr App. R(S) 89 (p.472).
10. In the Tower Bridge case Bell J stated in paragraph 4 of a judgment with which the Lord Chief Justice agreed, that:

"Drug treatment and testing orders were introduced from October 2000 as a new community sentence aimed at breaking the link between drug addiction and offending. The orders may last for the period, specified by the court, of between six months and three years. The treatment and testing carried out under the orders are an expensive resource targeted particularly at high volume offenders who have been largely driven to commit offences by their addiction to drugs and the need to finance treatment. The DTTO is unusual among community sentences in that it involves regular testing for drug abuse, and it involves the court which imposes the order having a formal and regular role in reviewing progress under the order and monitoring the offender's conduct subject to the order."

11. In Kelly Field J, giving the judgment of the court, in paragraph 13 quoted from the guidance issued by the Home Office for practitioners involved in drug treatment and testing order pilots:

"The primary aim of the drug treatment and testing order is therefore to prevent further offending. It is envisaged that the vast majority of suitable candidates will be convicted of acquisitive crimes, committed in order to obtain money to buy drugs. Volume of offending is likely to be a more important consideration than the seriousness of individual offences. Nevertheless, the type of offence is more likely to be an effective indicator than either and so those convicted of burglary, robbery, theft (including shoplifting), perhaps embezzlement and any other acquisitive crimes are likely most frequently to provide offenders suitable for the drug treatment and testing order. Offenders convicted of drugs supply who are themselves habitual misusers, and are otherwise suitable for a community sentence, should also be considered."

Field J stated in paragraph 15 in respect of the case before the court:

"With respect to the learned sentencing judge, we are of the view that he gave too great importance to the appellant's scale of offending and therefore gave too little consideration to the appropriateness of a DTTO disposal. The sad fact is that it will often be the case that a candidate for a DTTO has been guilty of acquisitive offending on a significant scale to fund his drug addiction. DTTOs provide a chance for the offender to break his addiction and therefore cease offending. Thus a sentencing judge must be careful not to give disproportionate weight to the scale of offending and thereby diminish the usefulness both to the offender and to the community of a DTTO."

12. We refer also to the judgment of this Court in Robinson [2002] EWCA Crim 535, [2002] 2 Cr App. R(S) 95(p.434, where the Vice-President stated in paragraph 26:

"It is well-known that a high proportion of criminal offences against people and property are committed in order to provide funds to feed the drug habit of the perpetrator. If there were fewer drug addicts, it is likely that there would be fewer criminal offences. Accordingly, in our judgment, judges should be alert to pass sentences which have a realistic prospect of reducing drug addiction whenever it is possible sensibly to do so."

That case was concerned with the position where the offender appeared before a second court for sentence soon after a court had made a DTTO.

13. We have been referred to a number of cases in which this court has allowed appeals and substituted DTTOs for sentences of imprisonment. In doing so the court has sometimes been assisted by further reports on the offender since sentence. In Billinger [2003] EWCA Crim 239 a court presided over by the Lord Chief Justice dismissed the appeal. In giving the judgment of the court Jackson J stated in paragraphs 11 and 12:

"11. As my Lord, the Lord Chief Justice, pointed out in argument to Mr Mousley, in a case concerning the commission of a series of offences motivated by drug addiction, where the probation service recommend a drug treatment and testing order, the sentencing judge has to make an assessment. Ultimately he is exercising his discretion by reference to all the circumstances of the case. In this case His Honour Judge Selwood carefully considered the recommendation for a drug treatment and testing order. He noted that he had to do a balancing act. In doing that balancing act, the judge took into account the circumstances of the offences and the material revealed by the drug treatment and testing order assessment report. The judge then came to the conclusion that the proper course in this case was to impose a substantial term of imprisonment rather than a drug treatment and testing order.

12. Although we accept that the appellant's motive for his offending was to feed a drug addiction, that does not compel the conclusion that a proper sentence in the case is a drug treatment and testing order. It seem to us that it must be a matter for the judge's discretion whether such an order is an appropriate disposal in the instant case. We do not consider that there is any material upon which we should say that the judge erred in the exercise of his discretion or that he came to a decision which was wrong in principle. The judge had regard to the seriousness of the offences before him. He was entitled to do so."

14. Lastly we refer to Attorney General's Reference No 28 of 2001 (Daniel McCollins) [2001] EWCA Crim 1373. There the offender had pleaded guilty to four street robberies. One involved punching the victim in the face. Two involved threats with a knife, and one a threat to shoot. All save the first were committed on bail. A DTTO was made. In giving judgment Judge LJ stated at paragraph 17:

"The proper approach to this case is, in our judgment, clear. The sentence for these four offences committed by this offender were unduly lenient. We recognise, of course, the importance of rehabilitation and reintegration, particularly where the offender is young and the opportunity to achieve rehabilitation may not readily return, and where the offender is already addicted to drugs, which problem unless addressed is likely to continue. That said, however, we do not consider that the Drug Treatment and Testing Order was an appropriate sentence in this case. We can summarise our reason in a single sentence. It gave excessive weight to the issue of rehabilitation and wholly insufficient weight to the actual criminality of the offender."

15. What we gather from these authorities is that a DTTO is an important part of the court's armoury in dealing with crime. While such an order is designed to address the causes of crime it is far from a soft option in that it requires the offender to submit to regular testing and also for periodic attendances at the Crown Court with the possibility that following an adverse report the order might be revoked and a custodial sentence substituted. What is also clear from the authorities is that it is incumbent upon a sentencer to give proper consideration to the making of a DTTO and not to reject that course simply because a custodial sentence would otherwise have been appropriate. Nor should it be thought that the option will cease to be available simply because of the scale of the offending. At the same time the actual criminality of the offender is by no means an irrelevant consideration as can seen from Attorney General's Reference No. 28/2001. In granting leave the single judge invited the court to consider whether and when an offence, or series of offences, might be so serious that only a custodial sentence would be justified and a DTTO should not be considered. In response we do not think that we can do better than to reiterate and underline what was said by this court in the passage already cited from Robinson.
16. Here the judge was faced with a difficult balancing exercise. He was rightly concerned about the burglary which contained some unpleasant features including the cutting of the telephone wire and the ransacking of the various rooms. At the same time it was not the worst case of its kind and it was an attack upon unoccupied premises. The members of this court are each inclined to think that given the contents of the reports available to the judge the appropriate order would have been a DTTO. Moreover, we have doubts about whether the judge properly approached the exercise of his discretion in accordance with the guidance, to which we have referred, given by the Vice President in the Robinson case. However, we do not finally have to resolve that question because we are satisfied that whatever the justification for the original sentence, having regard to the additional material available to this court, to which we have already made reference, the balance is now decisively in favour of allowing the appeal. It was for these reasons that we substituted the order which we did.