In court
| Author | Nigel Stone |
| DOI | 10.1177/0264550506063625 |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| Subject Matter | Articles |
Probation Journal
In court
The Journal of Community and Criminal Justice
Copyright © 2006 NAPO Vol 53(2): 188–206
DOI: 10.1177/0264550506063625
www.napo.org.uk
http://prb.sagepub.com
Nigel Stone, Senior Lecturer in the School of Social Work, University of East Anglia,
reviews recent appeal judgements and other judicial developments that inform
sentencing and early release.
General sentencing issues
Theft from shops: Guidelines
Taking the opportunity to consider three unrelated appeals together, the Court of
Appeal sought to offer clarification in respect of the common offence of shoplifting
(maximum term seven years since CJA 1991). The Court made clear that it was
not seeking to affect the level of sentencing appropriate for crime of this nature
committed by organized gangs, pointing out that repeated or large scale activity
of an organized, group nature can attract terms of four years, even following guilty
plea. Additionally, if violence is used against a shop worker, following the theft, a
term exceeding four years may be appropriate. The kind of offence that the Court
had in mind concerned ‘shoplifting by isolated individuals, not accompanied by
threats or violence’, nor normally featuring particularly vulnerable victims, i.e.
nuisance offending rather than dangerous or frightening crime, or activity that
damages or undermines the confidence of the public.
The Court proposed the following principles in respect of adult offenders:
● Use of Custody This is a classic offence for which custody should be the
sentence of last resort and should almost never be appropriate for a first
offence. However, where the offence is aggravated by use of a child in
committing the offence immediate custody is merited. A community
sentence may be appropriate on guilty plea by a first-time offender, even if
other adults were involved and the offending was organized.
● Drug Motive When the offending is attributable to drug dependency, a
DTTO (or the 2003 Act equivalent – NS) will often be appropriate.
● Short Custodial Terms Terms of not more than a month may be appropriate
for a defendant who persistently offends on a minor scale. If that
persistence also involves preparation (or presumably use – NS) of
equipment to facilitate the offence, two months may be called for.
188
In court 189
● Multiple Offences Even when the defendant has to be sentenced for a large
number of offences or has a history of persistent similar offending on a
significant scale, sentence should reflect the comparative lack of
seriousness and the need for proportionality. Following guilty plea the total
term will rarely need to be of more than 24 months and the offending will
often merit no longer than 12 to 18 months.
Young offenders will usually be dealt with appropriately non-custodially, where
there is no evidence that they are being used by adults (query why such evidence,
in itself, might prompt custodial sentencing – NS). R v PAGE [2005] 2 Cr.App.R.(S.)
221 (NS refers to writer’s notes).
Ambit of restraining order
When asked by a member of security staff at a Bournemouth nightclub to finish
his drink and leave as the club was closing (it was 2.15 am on New Years Eve),
the offender was abusive and threatening and had to be restrained and ejected.
On three subsequent occasions between January and May the offender encoun-
tered the staff member either at the entrance to the club or elsewhere in the town
(such as the approach to a supermarket) and confronted, threatened or chal-
lenged him. On his conviction following guilty plea to putting a person in fear of
violence by harassment, he was sentenced to 200 hours’ community punishment
and made subject to a restraining order of indefinite duration preventing him from
entering the borough of Bournemouth and either contacting or going within 100
metres of the complainant.
On his appeal against the latter, he argued that the exclusion area was far too
wide, being neither necessary nor proportionate. The Court of Appeal disagreed,
given that the harassment had been serious, on a number of occasions in a range
of locations. The designated zone had been entirely reasonable, being clear and
easily understood by reference to municipal boundaries. However, it regarded the
indefinite or lifetime timescale as disproportionate and substituted a term of 10
years. R v JOHNS, July 2005 (not yet reported).
Firearms: Minimum sentence
CJA 2003 amends the Firearms Act 1968 to require a minimum term of five years
for various firearm offences, save in ‘exceptional circumstances’. In an early appeal
testing the ambit of exceptionality, a gun (a gas-cartridge revolver in working order,
capable of firing pellets) had been found when the police conducted a drugs search
of the appellant’s home during his absence on holiday. No ammunition was found.
He had come into possession of it from a friend when this was lawful, intending
to use it for sport. Weapons of this nature had become unlawful around four years
later. He was described as essentially an honest and hard-working citizen who
used cannabis periodically. At the time of the search he had been suffering from
depression and he claimed to have no knowledge of the change in weapon legis-
lation or access to any publicity about this.
190 Probation Journal 53(2)
On his appeal against five years’ imprisonment, the Appeal Court noted that
in this kind of context conventional considerations of culpability are usually
considered secondary to the concern for the public good that weapons of this
nature are not in circulation. Further, an earlier decision of the Appeal Court
(Jordan and Others – see ‘In Court’, September 2005) had indicated that excep-
tionality must be ‘real’ and will be ‘rare’. However, in this instance the Court took
into account: the gun had been in the offender’s lawful possession for a signifi-
cant period of time; during the period of grace that had been afforded to owners
he had been experiencing depression, thus inhibiting his alertness to develop-
ments; the nature of the weapon, being unlawful on account of its semi-automatic
firing mechanism, but able to discharge only airgun pellets. After ‘our closest and
most anxious attention’, and noting that none of these factors standing alone
would serve to create exceptionality, the Court concluded that, taken cumulatively
these caused this to be one of the rare cases in which a lower than mandatory
minimum term was appropriate. The Court stated that it was nevertheless right to
have regard to the policy issue underlying the change in the law and thus part of
the amended sentence should reflect that policy. A term of 30 months was substi-
tuted. R v MEHMET, July 2005 (not yet reported).
Mitigation for meritorious conduct
Having caused death by driving carelessly with excess alcohol (swerving into the
path of an oncoming car, apparently distracted by trying to open the front
passenger window, colliding with and killing the other driver), a man sought to
maintain over an extended period of questioning that his pregnant wife had been
driving. Following his day-of-trial guilty plea he received a four year prison
sentence. On his appeal it was argued on his behalf that he should have been
given credit for his conduct around 11 months following the crime while he was
on bail and shortly before sentence. While driving he had come to the aid of
another driver who had skidded on ice into a stream and whose car was in
danger of toppling into deeper water. He had stood in the stream assisting the
injured and trapped man by holding his head for some 30 minutes until the
emergency services arrived. The police had commended him for his ‘diligence
and foresight’, while the Chief Fire Officer had written that his actions had been
‘well beyond civic duty’. The Court of Appeal concluded that he was ‘entitled to
substantial credit for his selfless and courageous conduct’, reducing sentence to
three years. R v WENMAN 2 Cr.App.R.(S.) 13.
Road rage: Disqualification and mitigation
In a serious and protracted episode of road rage a man aged 26, aggrieved for
no clear reason by another man’s driving, had blocked, confronted and chased
him for some six miles, subsequently running at him shouting ‘fucking wanker’,
armed with a wheel brace, with which he attacked the victim’s car, causing £1000
damage. An off-duty police officer who had seen the offender drive through a red
light sought to follow him but the offender braked sharply and alighted to confront
In court 191
him too, causing the officer, fearing for the safety of himself and his child, to try
to reverse out of range. The offender drove repeatedly at the officer’s car, shouting
his signature abuse.
Though he had prior convictions, none concerned irresponsible driving and he
was employed as a goods driver. A PSR and accompanying medical report stated
that he had ‘lost control’ on this occasion, having suffered a traumatic experience
in the preceding year in which he been assaulted at a nightclub, regaining
consciousness to discover that his clothing had been ripped. Believing that he had
been sexually assaulted, he had become depressed and irritable, being prescribed
anti-depressants and referred to a psychotherapist. The PSR emphasized his
commitment to his partner and family and the severe impact that his imprison-
ment would have upon them.
On his appeal, not against a total term of 12 months’ custody for dangerous
driving, affray and damage, but the accompanying five year driving ban, the
Appeal Court affirmed that his prison sentence had been entirely justified for what
the police officer had...
In court
The Journal of Community and Criminal Justice
Copyright © 2006 NAPO Vol 53(2): 188–206
DOI: 10.1177/0264550506063625
www.napo.org.uk
http://prb.sagepub.com
Nigel Stone, Senior Lecturer in the School of Social Work, University of East Anglia,
reviews recent appeal judgements and other judicial developments that inform
sentencing and early release.
General sentencing issues
Theft from shops: Guidelines
Taking the opportunity to consider three unrelated appeals together, the Court of
Appeal sought to offer clarification in respect of the common offence of shoplifting
(maximum term seven years since CJA 1991). The Court made clear that it was
not seeking to affect the level of sentencing appropriate for crime of this nature
committed by organized gangs, pointing out that repeated or large scale activity
of an organized, group nature can attract terms of four years, even following guilty
plea. Additionally, if violence is used against a shop worker, following the theft, a
term exceeding four years may be appropriate. The kind of offence that the Court
had in mind concerned ‘shoplifting by isolated individuals, not accompanied by
threats or violence’, nor normally featuring particularly vulnerable victims, i.e.
nuisance offending rather than dangerous or frightening crime, or activity that
damages or undermines the confidence of the public.
The Court proposed the following principles in respect of adult offenders:
● Use of Custody This is a classic offence for which custody should be the
sentence of last resort and should almost never be appropriate for a first
offence. However, where the offence is aggravated by use of a child in
committing the offence immediate custody is merited. A community
sentence may be appropriate on guilty plea by a first-time offender, even if
other adults were involved and the offending was organized.
● Drug Motive When the offending is attributable to drug dependency, a
DTTO (or the 2003 Act equivalent – NS) will often be appropriate.
● Short Custodial Terms Terms of not more than a month may be appropriate
for a defendant who persistently offends on a minor scale. If that
persistence also involves preparation (or presumably use – NS) of
equipment to facilitate the offence, two months may be called for.
188
In court 189
● Multiple Offences Even when the defendant has to be sentenced for a large
number of offences or has a history of persistent similar offending on a
significant scale, sentence should reflect the comparative lack of
seriousness and the need for proportionality. Following guilty plea the total
term will rarely need to be of more than 24 months and the offending will
often merit no longer than 12 to 18 months.
Young offenders will usually be dealt with appropriately non-custodially, where
there is no evidence that they are being used by adults (query why such evidence,
in itself, might prompt custodial sentencing – NS). R v PAGE [2005] 2 Cr.App.R.(S.)
221 (NS refers to writer’s notes).
Ambit of restraining order
When asked by a member of security staff at a Bournemouth nightclub to finish
his drink and leave as the club was closing (it was 2.15 am on New Years Eve),
the offender was abusive and threatening and had to be restrained and ejected.
On three subsequent occasions between January and May the offender encoun-
tered the staff member either at the entrance to the club or elsewhere in the town
(such as the approach to a supermarket) and confronted, threatened or chal-
lenged him. On his conviction following guilty plea to putting a person in fear of
violence by harassment, he was sentenced to 200 hours’ community punishment
and made subject to a restraining order of indefinite duration preventing him from
entering the borough of Bournemouth and either contacting or going within 100
metres of the complainant.
On his appeal against the latter, he argued that the exclusion area was far too
wide, being neither necessary nor proportionate. The Court of Appeal disagreed,
given that the harassment had been serious, on a number of occasions in a range
of locations. The designated zone had been entirely reasonable, being clear and
easily understood by reference to municipal boundaries. However, it regarded the
indefinite or lifetime timescale as disproportionate and substituted a term of 10
years. R v JOHNS, July 2005 (not yet reported).
Firearms: Minimum sentence
CJA 2003 amends the Firearms Act 1968 to require a minimum term of five years
for various firearm offences, save in ‘exceptional circumstances’. In an early appeal
testing the ambit of exceptionality, a gun (a gas-cartridge revolver in working order,
capable of firing pellets) had been found when the police conducted a drugs search
of the appellant’s home during his absence on holiday. No ammunition was found.
He had come into possession of it from a friend when this was lawful, intending
to use it for sport. Weapons of this nature had become unlawful around four years
later. He was described as essentially an honest and hard-working citizen who
used cannabis periodically. At the time of the search he had been suffering from
depression and he claimed to have no knowledge of the change in weapon legis-
lation or access to any publicity about this.
190 Probation Journal 53(2)
On his appeal against five years’ imprisonment, the Appeal Court noted that
in this kind of context conventional considerations of culpability are usually
considered secondary to the concern for the public good that weapons of this
nature are not in circulation. Further, an earlier decision of the Appeal Court
(Jordan and Others – see ‘In Court’, September 2005) had indicated that excep-
tionality must be ‘real’ and will be ‘rare’. However, in this instance the Court took
into account: the gun had been in the offender’s lawful possession for a signifi-
cant period of time; during the period of grace that had been afforded to owners
he had been experiencing depression, thus inhibiting his alertness to develop-
ments; the nature of the weapon, being unlawful on account of its semi-automatic
firing mechanism, but able to discharge only airgun pellets. After ‘our closest and
most anxious attention’, and noting that none of these factors standing alone
would serve to create exceptionality, the Court concluded that, taken cumulatively
these caused this to be one of the rare cases in which a lower than mandatory
minimum term was appropriate. The Court stated that it was nevertheless right to
have regard to the policy issue underlying the change in the law and thus part of
the amended sentence should reflect that policy. A term of 30 months was substi-
tuted. R v MEHMET, July 2005 (not yet reported).
Mitigation for meritorious conduct
Having caused death by driving carelessly with excess alcohol (swerving into the
path of an oncoming car, apparently distracted by trying to open the front
passenger window, colliding with and killing the other driver), a man sought to
maintain over an extended period of questioning that his pregnant wife had been
driving. Following his day-of-trial guilty plea he received a four year prison
sentence. On his appeal it was argued on his behalf that he should have been
given credit for his conduct around 11 months following the crime while he was
on bail and shortly before sentence. While driving he had come to the aid of
another driver who had skidded on ice into a stream and whose car was in
danger of toppling into deeper water. He had stood in the stream assisting the
injured and trapped man by holding his head for some 30 minutes until the
emergency services arrived. The police had commended him for his ‘diligence
and foresight’, while the Chief Fire Officer had written that his actions had been
‘well beyond civic duty’. The Court of Appeal concluded that he was ‘entitled to
substantial credit for his selfless and courageous conduct’, reducing sentence to
three years. R v WENMAN 2 Cr.App.R.(S.) 13.
Road rage: Disqualification and mitigation
In a serious and protracted episode of road rage a man aged 26, aggrieved for
no clear reason by another man’s driving, had blocked, confronted and chased
him for some six miles, subsequently running at him shouting ‘fucking wanker’,
armed with a wheel brace, with which he attacked the victim’s car, causing £1000
damage. An off-duty police officer who had seen the offender drive through a red
light sought to follow him but the offender braked sharply and alighted to confront
In court 191
him too, causing the officer, fearing for the safety of himself and his child, to try
to reverse out of range. The offender drove repeatedly at the officer’s car, shouting
his signature abuse.
Though he had prior convictions, none concerned irresponsible driving and he
was employed as a goods driver. A PSR and accompanying medical report stated
that he had ‘lost control’ on this occasion, having suffered a traumatic experience
in the preceding year in which he been assaulted at a nightclub, regaining
consciousness to discover that his clothing had been ripped. Believing that he had
been sexually assaulted, he had become depressed and irritable, being prescribed
anti-depressants and referred to a psychotherapist. The PSR emphasized his
commitment to his partner and family and the severe impact that his imprison-
ment would have upon them.
On his appeal, not against a total term of 12 months’ custody for dangerous
driving, affray and damage, but the accompanying five year driving ban, the
Appeal Court affirmed that his prison sentence had been entirely justified for what
the police officer had...
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