R v H
| Jurisdiction | England & Wales |
| Judge | SIR IGOR JUDGE |
| Judgment Date | 02 February 2006 |
| Neutral Citation | [2006] EWCA Crim 255 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200505670/A0200505762/A3 |
| Date | 02 February 2006 |
[2006] EWCA Crim 255
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand London, WC2
Sir Igor Judge
(president Of The Queen's Bench Division)
Mrs Justice Dobbs Dbe
Sir Douglas Brown
No: 200505670/A0200505762/A3
MR K RAYNOR appeared on behalf of the APPELLANT H
MR J CONINGHAM appeared on behalf of the APPELLANT STEVENS
MR J NEEDHAM appeared on behalf of the CROWN
These three appeal raise issues relating to Antisocial Behaviour Orders (ASBO).
Christopher Henchcliffe was born on 9th January 1990. He had no previous convictions but he had received a final warning for theft from a dwelling house and a reprimand for non residential burglary. On 19th August 2005, in the Crown Court at Derby, before His Honour Judge Hamilton, he pleaded guilty to causing John Spotswood grievous bodily harm with intent. He was sentenced to 3 years' detention and made subject to an ASBO in the following terms:
Not to contact John Spotswood either directly or indirectly.
Not to enter the area bounded by Chatsworth Road, Boythorpe Road, Hunlock Avenue and Walton Road in Chesterfield. The order was to run for a period of 10 years. He appeals against sentence with leave of the Single Judge.
The facts of the offence are disturbing. On 23rd March 2005, when the appellant was just 15 years old, he spent the evening drinking with his friends. He consumed at least 2 litres of light white wine with them and he was much the worse for drink. He believed, wrongly, that John Spotswood was a paedophile. The unfortunate Mr Spotswood, a 59 year old man who had never in any way been thought to be a sex offender, had already been subjected to nasty, unpleasant behaviour from a number of youth in weeks leading up to the attack by the appellant. The appellant boasted that he would attack him and indeed he did. He went to Mr Spotswood's armed with a bed post. Although Mr Spotswood could remember hearing a knock at his door, he remembered very little thereafter, save that he received a blow to the head and saw two people outside his home. In fact a number of youths saw the appellant holding the bed post in both hands and swinging it, striking Mr Spotswood twice to the head. The appellant was arrested that night. When interviewed he made no comment.
The result of the attack was very serious. Mr Spotswood sustained an injury to his brain and suffered an epileptic fit. He had undisplaced fractures to his left cheekbone and jaw and a number of broken teeth, together with cuts to both lips. Some of the cuts required stitches. He had bleeding to the nose and mouth, swelling of both cheeks and eyes, a cut on the top of his head, which required stitching. There was a large bruise to his left arm. He was hospitalised for nine days. On discharge from hospital he suffered problems with his balance but gradually made a full recovery from his physical injuries. We are told that the appellant was shocked when he saw the photographs of the complainant's physical injury. We too have seen the photographs. We are glad the appellant was shocked because they are truly shocking.
Mr Spotswood remains very troubled by the attack. He is shocked that he was attacked at all and remains apprehensive about answering his door. He continues to be frightened, for understandable reasons, and his life has been significantly affected. The attack on him has also had an impact on his family, who are, again entirely understandably, very upset at what has happened to him.
In his sentencing remarks the judge was rightly concerned about the gravity of the attack by such a young man. He made every allowance for the appellant's youth and the absence of any previous convictions and gave the appellant credit for pleading guilty at the first available opportunity.
He was obliged to impose a custodial sentence. He was right to do so. There is no appeal either against the custodial sentence or its length. We shall simply add that we further agree with the judge's observation in his sentencing remarks, that if the appellant had been an older man the sentence would have been significantly longer.
When the judge came to consider the anti-social behaviour order, he was very concerned about the potential impact on Mr Spotswood and his family, if the appellant moved back to live with his parents. Their home was close by Mr Spotswood's home, as the judge put it, "just down the road".
The judge explained that he was anxious that Mr Spotswood should know that he would not "have to face seeing you in his immediate neighbourhood or on his doorstep". The effect of the order made by the judge, however, was that the appellant's parents and family would have to move if the appellant was to continue to live at his home. The judge then specified that the order should run for a period of 10 years.
The single point taken on the appeal related to the period of the Anti-social Behaviour Order. We were concerned, however, about the terms of the order itself and accordingly we heard argument on both aspects of the case. When making the order the judge did not apparently directly address the relevant statutory provisions, but we assume that he had them well in mind. The order should not be made unless necessary to protect the victim from further anti-social acts by the appellant.
That was not how the judge expressed himself. We have indicated his sentencing remarks already. We have evidence to suggest both that the appellant is genuinely remorseful and also, as we have already noted, shocked by what happened. He nevertheless continues to believe in the fundamental truth of the allegations against Mr Spotswood. There are grounds, in our judgment, for discerning a significant risk that, on his release from custody, he may welcome an opportunity or perhaps, putting it equally realistically, not seek to avoid an opportunity to join with others, if not prepared to do so himself, to plaguing this unfortunate man, and even if not behaving with criminal violence towards him, to pressure him in a way which would cause alarm and distress.
That said, the appellant is still a very young man. He has a lot of growing up to do, and the effect of the order in its present form is that he would not be permitted to return to his home on his release from custody. In other words, his home would have to move outside the area prescribed by the judge, or, if for any family reasons, and there may be some, his family were unable or could not move, then the appellant would not be able to return home. That would be a most troublesome start to his rehabilitation and we think likely to reduce the prospects of successful.
Moreover, quite apart from the provisions of the criminal law, which should protect the victim from any further violent behaviour by the appellant, on his release from custody the appellant would in any event be subject to license conditions which should themselves serve to reduce the risk of trouble of any kind in Mr Spotswood's street.
We propose to leave the Anti-social Behaviour Order in existence, but we shall reduce the period to one of 5 years to reflect a sufficient time for this young man to have reached the necessary level of maturity. We shall leave the first condition in place, that is he is not to contact John Spotswood either directly or indirectly, and we shall amend the second part of the order, in relation to where the appellant may go, by reducing its application to the street in which Mr Spotswood lives, which we believe to Wolgrove Avenue. To that limited extent therefore this appeal is allowed.
Cyril John Stevens was born in May 1949. He has a total of 135 previous convictions for over 200 offences, the list includes 133 offences of theft and kindred offences and 44 offences relating to drunkenness. On 27th February 2004, following convictions for a number of offences including non—residential burglary, theft by shoplifting, driving a motor vehicle with excess alcohol and failing to surrender, an Anti-social Behaviour Order was imposed by the Wickham and Beconsfield Magistrates' Court. This order prohibited the appellant from:
(a) being drunk in a public place;
(b) entering any land or premises which were members of the Wickham watch scheme as prescribed or others notified to him in writing as a trespasser;
(c) remaining on any land or premises as a trespasser having been asked to leave by the owner, occupier or agent thereof;
(d) urinating or defecating in any public place other than a toilet;
(e) using abusive or insulting language;
(f) engaging in any behaviour that causes or is likely to cause harassment, alarm or distress to any person.
The original order prohibited the appellant from committing any act of theft or any other criminal offence. But this condition was rightly struck out at a later date by order of Judge Tyrer. Conditions (a) and (d) were plainly linked. We infer the order was made on the basis that when in drink the appellant was liable to urinate or defecate in public.
The period for which the order was to run was 5 years. On 31st May 2005, the appellant indicated at the same Magistrates' Court that he would enter a guilty plea to a breach of the Anti-social Behaviour Order and theft by shoplifting. The Magistrates committed the case to the Crown Court for sentence.
The facts relating to the breach of the Anti-social Behaviour Order are very simple. The appellant was found lying on the ground in a disused car park in High Wycombe. He was slurring his words and appeared to be incoherent. When trying to walk, he staggered about. Police officers...
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