England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13 October 2004

Thursday 21 October 2004

LORD JUSTICE JUDGE: I will ask Mr Justice Royce to give the judgment of the court.

MR JUSTICE ROYCE:

1. On 31 March 2004, in the Crown Court at Preston, before Her Honour Judge Badley, the appellant pleaded guilty to one count of robbery. On 28 April 2004, he was sentenced to three years' detention in a young offender institution. In addition a two year anti-social Behaviour Order was imposed to commence on the date of release. He appeals by leave of the single judge.
2. The facts of the robbery were these. At about 11.30pm on 12 March 2004, a man called Lee Fraser, who was a disc jockey, was on his way home from a local club. As he made his way to Preston bus station he saw the appellant in the company of another male and a female. The appellant commented, "Look at his hard walk. Does he think he's hard?" and he made some derogatory remark to Fraser. That caused Fraser to turn around and say, "What?", at which point the male with the appellant walked away. The appellant, however, continued to be abusive towards Fraser, approached him in an aggressive manner and lunged at him. He grabbed hold of Fraser's clothing around the neck, and, in doing so, he took hold of a chain that Fraser was wearing. As Fraser attempted to get away, the appellant tried to punch him to the head. During the course of the struggle the appellant pulled Fraser's clothing harder and pulled away the chain around Fraser's neck, causing it to snap. The appellant looked at the chain and put it into his pocket. Fraser asked for the chain back, explaining that it was a gift from his mother. His plea fell on deaf ears. After the appellant walked away, Fraser ran towards a police station. He was described as being in a distressed state. He was driven around the area by the police and the appellant was identified. He was arrested. The stolen chain was recovered from the underclothes of the female who was with the appellant.
3. When interviewed the appellant said there had been a fight, but he denied taking the chain.
4. The three year order of detention in a young offender institution is rightly not subject to criticism by Mr Bennett on behalf of the appellant. His appeal centres on the anti social behaviour order for two years. He contends that no such order should have been imposed. He relies on the judgment of this court in R v P [2004] EWCA Crim 287, a court over which Lord Woolf CJ presided, although the judgment was given by Henriques J. The appellant in that case was aged 15 at the time he committed a number of offences (principally street robberies), and was aged 16 at the time of sentence. His four year sentence of detention was reduced to one of three years' detention and a two-year anti-social behaviour order, suspended to take effect on his release, was quashed. In the course of the judgment at paragraph 35 Henriques J said:

"It will be readily observed from a consideration of the Home Office Guide to Anti-Social Behaviour Orders that the conduct primarily envisaged as triggering these orders was for a less grave offence than street robbery, namely graffiti, abusive and intimidating language, excessive noise, fowling the street with litter, drunken behaviour and drug dealing. Doubtless in drafting that report the Home Office had in mind that courts have considerable powers to restrain robbers. We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited. We endorse the suggestion properly made by Miss Dagnall that there will be cases in which geographical restraints may properly supplement licence conditions."

5. It is worthwhile bearing in mind that, unlike the appellant in P, the appellant in this case has a very considerable criminal record, described, properly in our judgment, in his counsel's advice as "formidable and unenviable". He is now aged 19, having been born on 16 June 1985. He has been before courts on seventeen occasions previously since December 1999 for 28 offences. Those include burglaries, thefts, assault occasioning actual bodily harm, being drunk and disorderly, criminal damage, aggravated vehicle taking and a host of other driving offences. In addition, the sentencing judge had documentation from an officer who was concerned with what took place in the area where, until September 2003, the appellant had been living. That document, headed "Summary of Evidence" set out in considerable detail the circumstances of the appellant's principal previous convictions. It started in this way:

".... Scott Parkinson (a persistent offender), .... has amassed a large number of criminal convictions ranging from burglary to assaults. The majority of these crimes were committed on the ward of Brookfield. Similarly, Parkinson's crimes are predominantly committed in the hours of darkness, in groups of other youths and under the influence of alcohol, indicating a clear pattern of criminal activity."

There is then set out the detail to which we have made reference. It makes depressing reading. 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.

6. In addition to the detail to which we have made reference, the judge also had material from the officer setting out the problems that Preston City Council had had with the Parkinson family, including this appellant. It dates back to 20 October 1998 and, through a series of measures, it culminated in an eviction order on 26 September 2003 at the Preston County Court, which required this family to move elsewhere. It is perfectly plain that the residents of Brookfield had had to put up with a great deal from this family, including this appellant, in the preceding years. The judge considered that that material, and the oral evidence before her, entitled her to conclude that an anti-social behaviour order was necessary in this case to protect the public from further anti-social acts by the appellant.
7. Mr Bennett on behalf of the appellant frankly concedes that he had access to that material and was not in reality in a position to challenge it.
8. We have come to the conclusion that this was one of those exceptional cases where the judge quite properly reached the conclusion that this order for two years, taking effect on this young man's release, was necessary. She detailed the particular elements of it and they must have been perfectly clear to this appellant. It is to be hoped that his time spent in custody will improve his behaviour. It is to be hoped that he is not a lost cause. In addition to protecting the public it is perhaps significant that this order may in fact protect him from succumbing to the temptation of resorting to his old ways. For those reasons we consider that the ground of appeal in relation to the anti-social behaviour disorder is not made out. Accordingly, this appeal must be dismissed.
9. We finally say this. We were initially hampered in our consideration of this matter by the absence of any documentation that was before the sentencing judge in relation to this aspect of the matter. It is important, if there is an appeal contending that an anti-social behaviour order should not have been made or contending that its terms were unnecessarily wide, for this court to be provided with the material that was before the judge who made the order. Fortunately, in this case counsel has been able to provide the documentary evidence that was before the sentencing judge.