R v Butler
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE BOREHAM,THE LORD CHIEF JUSTICE,SIR RALPH KILNER BROWN |
| Judgment Date | 20 June 1986 |
| Neutral Citation | [1986] EWCA Crim J0620-1 |
| Judgment citation (vLex) | [1984] EWCA Crim J0612-20 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 5219/C/85,No. 5654/B/83 |
| Date | 20 June 1986 |
[1984] EWCA Crim J0612-20
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Boreham
and
Mr. Justice Skinner
No. 5654/B/83
MR. G. TYRELL appeared on behalf of the Appellant.
MR. M. PERT appeared on behalf of the Crown.
On 23rd September last year this appellant, Mark Peter Butler, appeared at the Crown Court at Lincoln before Mr. Assistant Recorder Walmsley, and there pleaded guilty to six offences of burglary. He was sentenced as follows: on counts 1, 5 and 6 in the indictment to twelve months' detention concurrent; on count 9 to two years' detention and on counts 12 and 14 to eighteen months' detention concurrent. All those detention orders were made under section 53(2) of the Children and Young Persons Act 1933: a total of two years' detention. In arriving at his decision the learned Assistant Recorder took into account 23 other offences, many of them offences of burglary and at least three of them burglaries of dwelling houses.
Now with the leave of the single Judge Butler appeals against those sentences.
The facts which took him to the Crown Court, taken in chronological order, and taken quite shortly, are these. On the night of 23rd April 1983 the appellant, then aged 16 years, together with a co-accused aged 17 and another young man aged 25, broke into a general store in Gainsborough in Lincolnshire by forcing a transome window and stole £108 in cash and just under £1,000 worth of cigarettes.
Counts 5 and 6 were the next in chronological order. On the night of 1st June 1983 the appellant twice broke into a shop in Gainsborough. On the first occasion he was accompanied by two young men, each aged 22 years, and on the second occasion by the young 17-year old who had been on the first venture. Over £400 worth of cigarettes and other smoking materials and sweets were taken. £127 worth of property was later recovered.
A week later came the most serious offence of all. It was the burglary of a dwelling house. It was committed by the appellant and the 17-year old. They broke into a dwelling house in Gainsborough whilst the owners were away on holiday by forcing a transome window. They stole property, including a colour television set, audio and video equipment, electrical goods, spirits and jewellery to a total value of £3,300. In addition, and this was a particularly nasty feature of the offence, they caused some £2,000 worth of damage by acts of vandalism within that house. Those acts included throwing brown sauce and Jeyes fluid over curtains, wallpaper and furniture. Of the total property taken, about £1,000 worth was recovered.
A few days later, between 9th and 13th June, the appellant and yet another man, this time a young man aged 25, broke into and her house in Gainsborough whilst the owner was away for the weekend, again by forcing a transome window, and stole a variety of property to a total value of nearly £1,400. About half the property that was taken was later recovered.
Finally, so far as the counts in the indictment were concerned, on 13th June the appellant and a 22-year old broke into a house, again whilst the owner was on holiday, once again by the same method, forcing a transome window. They stole property including two television sets this time, jewellery and a small amount of cash to a total value of about £500. In addition there were again acts of vandalism. They threw powder and milk into a tropical fish tank and broke the heaters and filters, as a result of which about 40 fish died. That damage was estimated at about £40.
The following day on 14th June the premises where the appellant was then living with a young man Cunningham, the 17-year old, were searched. The appellant was arrested and after initial denials, admitted those various offences and made a voluntary statement, to which it is unnecessary to make particular reference. He explained in that statement how it was that he came to be involved upon these offences. He had the grace to apologise for the vandalism during what can be called the count 9 burglary. He said "It was funny at the time but afterwards I realised how stupid I had been". It is fair to say, there were other expressions of remorse and apology in that statement.
The offences taken into consideration, as I have said, were 23 in number. Most of them were burglaries and at least three were burglaries of dwelling houses. The total amount of property involved was just under £1400.
The appellant is now 17 years of age. He was 16 when he appeared before the Crown Court. He is single. As I have indicated, he was living at the relevant time with the young man Cunningham and Cunningham's girl friend. He had had only a brief period of work since he left school, in April 1983.
He had had three prior court appearances, of which the most relevant was in January 1983, when he appeared before the Gainsborough Juvenile Court charged with burglary and was sent to a detention centre for three months. He was released from that sentence on 18th February 1983. On 2nd February he appeared before the same Juvenile Court for assault occasioning actual bodily harm. That must have occurred, having regard to the chronology, before he was sent to detention centre. So that, having been released from the detention centre in mid-February, it was towards the end of April that this catalogue of offences which took him to the Crown Court was commenced.
There were before the Crown Court, and there are before us, two reports: a social enquiry report and a reception unit report. They are, as Mr. Tyrell has said on behalf of this young man, excellent reports, exceptionally good in many ways. He is described as a healthy, articulate and intelligent young man who appeared to be quite mature for his years. Apparently he did not do very well at school, because he did not try very hard. It was thought that he did not try very hard because perhaps he was just too comfortable at home. At all events he seems to have come from a good home. Clearly the probation officer was, as he said, very favourably impressed by this young man's behaviour on remand awaiting his appearance at the Crown Court, impressed by his growing self-awareness and by his expressed determination to make a fresh start. In those circumstances it was suggested that the appropriate way of dealing with this appellant for all these offences was by either a supervision order or a care order. The other report really confirmed the impressions of this appellant given by the probation officer and supported the suggested disposal of the case.
As I have indicated, the learned Recorder felt himself unable to follow those suggestions: he sentenced him to two years' detention.
The other defendants who appeared with him, and there were five others, those who have been referred to very briefly in the course of the recital of the facts, were variously dealt with. Perhaps the most relevant, if any are particularly relevant, was Patrick Joseph Cunningham, who was 17 years of age, unemployed and had two previous court appearances for criminal damage and theft. He pleaded guilty to four burglaries, as opposed to the six admitted by this appellant, and twenty offences were taken into consideration in his case. He was sentenced to a total of two years' youth custody. As will appear, two years' youth custody was not a sentence that was available to the Recorder so far as this young man was concerned because of this age.
Mr. Tyrell in a very careful and very attractive argument to this Court, really relies upon two of the grounds set out in the notice of appeal. The first is, if the only appropriate method of dealing with the appellant was to impose a custodial sentence, then the twelve months' youth custody which the Court had power to impose under sections 6(1) and 7(8) of the Criminal Justice Act 1982 was sufficient. Second, though really as part of the same submission, he contends that the circumstances of the offences which took this young man to the Crown Court were not sufficiently serious or grave or exceptional, whatever the appropriate word might be, entitle the Court to invoke the provisions of section 53(2) of the Children and Young Persons Act 1933.
We turn to deal with those submissions. The first point made by Mr. Tyrell is substantially this. Section 53(2) of the Children and Young Persons Act is intended to be invoked, and only to be invoked, in cases of grave crimes. The submission is of course that in this particular case the crimes do not fall into the category that can properly be called "grave".
The appropriate starting point is the Criminal Justice Act 1982, which provides in section 6 that subject to section 53(2) of the Children and Young Persons Act 1933, youth custody is the appropriate sentence for those of the age of this appellant. Section 7 then lays down the maximum length of term, according to circumstances.
Section 7(8) reads: "An offender aged less than 17 years shall not be sentenced to a term of youth custody which exceeds 12 months at a time; and accordingly – (a) a court shall not pass a youth custody sentence on such an offender whose effect would be that he would be sentenced to a total term which exceeds 12 months; and (b) so much of any such term for which such an offender is sentenced as exceeds 12 months shall be treated as remitted."
Subsection (9) provides in effect that in determining whether or not a sentence does exceed 12 months, there shall be taken together two or more terms imposed at the same time.
Thus it was that the learned Assistant Recorder, if youth...
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Subject Index
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