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
		15 October 2008

THE LORD CHIEF JUSTICE:

1. These are appeals by Matthew Pease, Slav Zinoviev, Ziggy Grudzinskas and Andrew Gillman against the sentences imposed by His Honour Judge Hardy sitting in the Crown Court at Southwark on 11 July 2008. All four had eventually pleaded guilty to conspiracy to commit criminal damage. Their pleas were delayed until after the trial had started and the judge had given a number of evidential rulings. They were sentenced as follows: Gillman to 24 months' imprisonment; Zinoviev and Grudzinskas to 18 months' imprisonment; and Pease to 15 months' imprisonment.
2. There were a number of other members of the conspiracy: McLelland was sentenced to nine months' imprisonment suspended for twelve months; Stewart was sentenced to 18 months' imprisonment; and Binnie and Tanti were each sentenced to twelve months' imprisonment suspended for twelve months.
3. Pease, Zinoviev and Grudzinskas appeal with leave of the single judge. Gillman's application for leave was referred by the Registrar who also granted a representation order. In view of the fact that the other three conspirators had been granted leave to appeal against sentence, we shall give Gillman leave to appeal against sentence so that his position will be identical to that of the other three.
4. The facts of this case disclose a serious offence. All the accused (including those who have not appealed against their sentences) were part of a group who referred to themselves as the DPM Crew ("DPM" standing for "Don't Push Me"). They were self-styled graffiti artists. Some indeed were talented artists, but they caused substantial vandalism to trains, to rolling stock and other infra-structure, most of it in London, but also in other parts of the country as well as abroad. The appellants had their own "tags" or signatures which would be incorporated into the graffiti. Often their "work" was filmed and posted on web-sites. During the investigation videos seized from Pease's bedroom showed trains with the DPM graffiti. In May 2006 Grudzinskas and Zinoviev were seen filming trains with DPM graffiti while at London Bridge. While on bail awaiting trial, Gillman had taken a job with the BBC to put graffiti on the sets of "Eastenders" to add realism. To add to his own notoriety he used his own "DPM" tag on the sets.
5. The Crown's case, which was plainly established, was that these attacks were well planned and executed. The defendants gained access to train depots and stations late at night, often using tools to remove or to damage fencing in order to gain access. Having gained access, they then carried out these graffiti attacks. An operation was launched in March and April 2006 as a result of which a great deal of surveillance was carried out.
6. On 26 and 27 June 2006, following a graffiti attack on trains at Orpington sidings, Gillman, Zinoviev, Grudzinskas and McLelland were arrested. Along with spray cans and latex gloves, Gillman's mobile telephone was recovered. Analysis showed that he had been in contact with the others and Tanti before the attack. On the next day Pease and Binnie were arrested.
7. This was not simply a matter of young men having silly, irresponsible fun. This was very serious criminal damage. The Crown's case was that within the conspiracy the hierarchy ran as follows. The prime mover was Gillman. Very little DPM activity did not involve him. He had a close responsibility for the organisation of these crimes. He was also responsible for uploading DPM material on to the internet. It was he who decided those who should and those who should not be permitted to join the DPM Crew. Zinoviev and Grudzinskas were at the next level. They were not controllers in the same way that Gillman was, but they were involved in many more of the incidents than the rest of the defendants; they were involved in the North East of England and abroad. Zinoviev was involved in attacks in the North West of England and Grudzinskas on attacks in Paris. Pease was slightly lower down the scale. He was described as a "general member" of the DPM Crew. He was involved with DPM activity during the period covered by the indictment, but not on quite the same high level as Zinoviev and Grudzinskas. Pease had in his possession video tapes of DPM activity which had taken place over a very long period. He had also been to a legal graffiti workshop in Prague in October 2005, where he considered himself to be representing the DPM Crew.
8. It is fair to say that, as far as can be ascertained, the graffiti activity did not create any danger to the public using trains; but it caused a great deal of inconvenience because the vandalism was felt when trains had to be taken out of service as unfit for use. It is also true that the graffiti did not contain offensive, racist or similar material. However, in the end the damage caused by the DPM Crew was impossible to quantify because it was so large. A figure of £267,000 was established as the damage caused in relation to twenty of the DPM related attacks on South Eastern trains. However, that figure was linked only to a three month period within the indictment. The Crown's case was that the true figure of the damage caused by this conspiracy was likely to run into millions of pounds.
9. All four appellants were men of previous good character. Grudzinskas had three cautions for criminal damage, but the sentencing judge was prepared to treat him as a man of good character. There were positive, supporting testimonials before the court. The pre-sentence reports described different attitudes by the different appellants. In the case of Gillman the author of the report recorded that Gillman had become interested in graffiti art from an early age and that the experience of the comradeship and joint artistic impression had provided a powerful motivation for his involvement in these offences. He accepted that he had carried the Crew's name, but denied that he had orchestrated their activities. The graffiti had become part of his life, but he told the author of the report that he intended to pursue legitimate artistic endeavours in the future. His arrest had led to some impact and insight into the fact that he was now in a serious position. He did not seek to minimise his own actions. The author considered that his behaviour had been motivated by a desire to gain kudos among his friends. Gillman had the advantage of supportive parents who disapproved of his behaviour. There was nothing to indicate that there would be a risk of harm to the public in the future. The likelihood of his re-conviction was assessed as low.
10. Zinoviev told the author of the report on him that he had become involved in the offences for the thrill of it. He knew that it was unlawful, but he did not appreciate that his activities and those of the other conspirators would cause much disruption. He came across to the author of the report as a mature individual who regretted his actions. Again he had a good family background. His parents were disappointed at his involvement in these offences. The likelihood of reconviction was assessed as low. Zinoviev did not suggest that he was anything other than a willing party to these offences. It was to his credit that he did not seek to blame anyone else.
11. Grudzinskas also accepted full responsibility for his offending. He recognised the impact of his behaviour on the community generally. In his case it was recorded that he was seduced by the notoriety that the group had attracted. However, by the time he was interviewed by the author of the report, he recognised the gravity of the offence. Again in his case the likelihood of reconviction was assessed as low.
12. The report on Pease recorded his assertion that his involvement was minimal. He believed that what he had done was creative. At the time when he carried it out, he did not consider that it was wrong. He got a "buzz" from his activities, but he was adamant that he would not repeat his behaviour. The likelihood of reconviction in his case, too, was assessed as low.
13. It is unnecessary for the purposes of this appeal to relate the individual bases of plea that were advanced by the different appellants.
14. The sentencing judge, who had all this material available to him, acknowledged in his sentencing remarks that some of the examples of the work showed considerable artistic talent. However, it had been sprayed all over other people's property without their consent and that was "simply vandalism". He noted that the offence took place over a long period on "an almost industrial scale". All the offenders before him (which included the appellants) were part of the conspiracy in varying degrees. The conspiracy was carried out on the basis of a wholesale, self-indulgent and carefully planned campaign to damage property, panel railway rolling stock and stations, in London, elsewhere in England, and abroad. He said:

"In short, this was a shocking attack on property on a massive scale ...."

The judge recorded the impossibility of producing an exact figure to describe the cost of rectifying the damage, but he noted the number of estimates and the way in which they would run into seven figures. He said:

".... each train that has been heavily vandalised .... has had to be withdrawn for about eight days from service. Those trains are hired [at a cost]."

The respraying of each train cost £50,000. In addition, the judge was concerned about the inconvenience caused to the public and indeed the site of the urban landscape being defaced which "adds to anxiety faced by society as a whole that things are out of control".

15. The judge examined two earlier decisions of this court in R v Verdi [2005] 1 Cr App R(S) 197 and R v Dolan and Whittaker [2008] 2 Cr App R(S) 67. He concluded that the activities had crossed the custody threshold, each defendant having taken part in a criminal conspiracy which specialised in widespread and persistent attacks. He then made his own analysis of the involvement of the different conspirators and passed the sentences which we have already described.
16. The arguments on appeal, well presented to us by each counsel on behalf of the different appellants, in summary come to this. It is conceded that the custody threshold was passed. However, it is submitted that the sentence in the case of each appellant was not the shortest sentence that could properly have been passed to reflect his own individual criminality. For each appellant emphasis is placed on his previous good character; the fact that pleas of guilty were tendered; that between the time of arrest and the time when the pleas were eventually entered there was no further offence committed by any of them and that there was positive good conduct during that period; and emphasis was also placed, understandably, on the fact that in the view of the authors of the different reports there was no realistic prospect that the appellant would re-offend.
17. In the case of Gillman it was submitted that he had learned his lesson. Although he may have been the prime mover, as the judge found, there was a potential disparity of sentence between him and Zinoviev and Grudzinskas. In that context our attention was drawn to the alarming figures: that of the 31 tags of the DPM Crew which were identified as such, 28 had Gillman's tag, 24 had Zinoviev's, and 21 had Grudzinskas'. The difficulty with that submission is that the judge was entitled to examine the overall criminality as it was presented to him on the evidence and then to conclude that Gillman's role was more distinctly established as that of one of the prime movers. Finally, our attention was drawn to very positive reports from prison in his case.
18. Much the same broad approach was taken in relation to the remaining appellants. In the case of Zinoviev it was suggested that the judge's starting point was too high; that he failed to consider whether the sentence actually passed was a necessary sentence; and that the purposes of sentencing could have been met by a shorter sentence with particular emphasis on his recorded contribution since his arrest to the wellbeing of the community.
19. For Grudzinskas the submissions were much the same. If the judge had taken sufficient account of his previous good character, the change in his life that he had achieved since his arrest, the absence of any prospect of re-offending, and the difficulties the appellant would have in serving his sentence and therefore his inability to take up his place at university, the overall sentence would have been shorter.
20. In Pease's case the submission was that the sentence on him was too long for many of the same reasons, which we shall not repeat. It was also said that there is a disparity in particular as between him and the sentences imposed on Binnie and Tanti. As to that issue, we have examined the information before the sentencing judge. There were features of the evidence directly affecting Pease which were not available to inculpate Tanti and Binnie. We find nothing in the disparity argument.
21. In broad support of the submissions, our attention too was drawn to the previous decisions of this court in Verdi and in Dolan and Whittaker. We need not trouble to analyse Verdi, where the sentence was more severe than the sentence passed in Dolan and Whittaker. There are a number of features in Dolan and Whittaker that are relevant. First, it was not a guideline case; it was a decision of this court on specific facts. Second, in that case the court concluded that the custody threshold was passed. Third, there were specific mitigating features in that case, not least immediate admissions, which led the court to take what might with hindsight be described as a merciful view.
22. At the time they were involved in these offences, the appellants were all intelligent and relatively mature. The conspiracy in which each involved himself was well organised. One of its consequences was significant damage on a vast scale which caused considerable cost to repair. Although the appellants now appear to have genuine insight into the consequences of their activity and are resolved not to commit further offences, at the time when the offences were committed all four perpetrators were immensely pleased with themselves. Some of them indeed relished their own notoriety and the attention which it drew.
23. In our judgment these sentences were fully justified. 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. Accordingly, notwithstanding the care with which these appeals have been presented by counsel for the appellants, they will be dismissed.

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