England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		17th August 2005

1. MR JUSTICE DAVID CLARKE: On 22nd April 2004, in the Sussex Magistrates' Court, the appellant who is 44, pleaded guilty to breach of an Anti-social Behaviour Order. He was committed to the Crown Court in custody for sentence and on 27th May, in the Crown Court at Lewes before His Honour Judge Issard-Davies, he was sentenced to 12 months' imprisonment for the breach of the Anti-social Behaviour Order. The offence placed him in breach also of a conditional discharge which had been imposed on 7th March. No separate penalty was imposed for that. Also, he was subject at the time to a community rehabilitation order which had been imposed on 11th April for an offence of harassment, that being only 10 days before the commission of the incident which placed him in breach of the Anti-social Behaviour Order. The community rehabilitation order was also revoked by the sentencing judge. The appellant appeals against the 12 month sentence by leave of the Single Judge who ordered an expedited hearing.
2. The anti-social behaviour of which he was in breach prohibited him for 2 years from using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person. The breach consisted of conduct on the evening of 21st April when a project worker on duty at a night shelter in Hove went to close the building for the night and found the appellant in the porch. He asked the appellant to leave and the appellant replied in aggressive language: "I won't leave, fuck off." Another night worker arrived. Again the appellant was abusive. Whilst the two members of staff went to telephone the police, the appellant repeatedly said: "Fuck off, I can see you there." He pressed the buzzer at the door and kicked the door as he did so. The police arrived, found him drunk and unsteady on his feet and he was arrested. His explanation for his conduct was that he wanted to stay at the shelter but he had gone there too late. He had had a lot to drink but had been assaulted and punched in the eye shortly beforehand and was angry. He remembered being abusive to the staff and accepted he was in breach of the order. Effectively this was a man guilty of an offence of being drunk and disorderly. We have already indicated the other orders to which he was already subject.
3. He is a man of 44 with a very long history of previous convictions. In recent years his convictions were mainly for public order offences, drunk and disorderly, criminal damage and the like.
4. There was a pre-sentence report which anticipated the imposition of a custodial sentence and the author considered there was a high risk of reoffending. His behaviour was unpredictable when he had been drinking. He had a long history of offending linked to his misuse of alcohol. He apologised for his behaviour towards the staff. There was a letter also before the court from the appellant. He explained in fuller detail that he had been homeless for some time, though he had spent the occasional night at that particular shelter. But he particularly needed shelter that night because he had been attacked and injured by a group of young men, who had taken his rucksack and his sleeping bag. He was therefore unable to remain on the streets.
5. A prison report is now before us, which shows him to be generally polite in prison, though he has bouts of moroseness when he can be sullen and unco-operative. The learned judge made brief sentencing remarks, referring to the earlier sentences of the court, and on 21st April the judge added:

"You were in breach of all of them. The proper sentence it seems to me is one of 12 months' imprisonment for the breach of the anti-social behaviour order."

He then revoked the community rehabilitation order and imposed no separate penalty in relation to the conditional discharge.

6. In careful written submissions, it is argued that the sentence was manifestly excessive against the background of an early guilty plea, the nature of the conduct giving rise to the breach and the efforts that the appellant had made to address his problems. This was the first breach of the Anti-social Behaviour Order.
7. The Single Judge, granting leave to appeal, commented briefly:

"For being drunk about disorderly: a year's imprisonment and termination of [community rehabilitation order]. Can this be right?"

The short answer to that question, as a matter of law is of course yes. Where an anti-social behaviour order has been made and is breached, the breach consisting of conduct which is itself a criminal offence, the potential sentence may be far longer than the maximum for that basic offence.

8. As Leveson J remarked when giving the judgment of R v Braxton [2004] EWCA Crim 1374, to which we have been helpfully referred, the anti-social behaviour order provisions were a response by Parliament to increasing concerns about the impact on the public of anti-social behaviour in its many forms. That concern must therefore be reflected by the courts in the sentences which it imposes for breaches.
9. In the present case, the breach followed quickly on the imposition of the community rehabilitation order and indeed the conditional discharge. It seems to us that a prison sentence was right, despite the arguments addressed to the sentencing judge that the community sentence should have been allowed to continue.
10. On the other hand, it seems to us that the judge gave no particular reason for the length of the sentence which he decided was appropriate, and we consider that despite the aggravating features of this breach occurring so soon after the other appearances before the court, it was disproportionate in length to the nature of the breach which affected nobody except the members of staff of the night shelter, where he was already known. This man has served almost 4 months in custody. We consider that an 8 month sentence is appropriate for the breach with which this Court is dealing. The appellant must realise, of course, that further breaches of the Anti-social Behaviour Order, which is a 2 year order, will inevitably attract longer sentences in the future.
11. The appeal on this occasion is allowed by quashing the sentence of 12 months' imprisonment and substituting one of 8 months.