R v Kirby (Lee)

JurisdictionEngland & Wales
JudgeMR JUSTICE DAVID CLARKE
Judgment Date04 May 2005
Neutral Citation[2005] EWCA Crim 1228
Docket NumberNo: 05/924/A9
Date04 May 2005
CourtCourt of Appeal (Criminal Division)

[2005] EWCA Crim 1228

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Maurice Kay

Mr Justice David Clarke

Recorder Of Birmingham

His Honour Judge Saunders Qc

No: 05/924/A9

Regina
and
Lee Kirby

MR RICHARD BENNETT appeared on behalf of the APPELLANT

MR JUSTICE DAVID CLARKE
1

On 28th January 2005 in the Crown Court at Teesside before His Honour Judge Bowers the appellant, who is 29, pleaded guilty to dangerous driving and driving whilst disqualified, and he was sentenced to 20 months' imprisonment for dangerous driving and five months' imprisonment consecutive for driving whilst disqualified. The judge also made against him a criminal anti-social behaviour order for ten years.

2

The appeal before us relates both to the length of the sentence of imprisonment and to the making and length of the anti-social behaviour order.

3

The facts were of a depressingly common type. The appellant was seen at about 3 am driving a Vauxhall Cavalier car in Middlesbrough. He was speeding. The police officers decided to follow the car. When they did so, it was driven off at speed along a number of residential streets. It was driven at high speed three times around a circuit of three streets. The appellant then accelerated to between 40 and 50 mph, approaching a roundabout, which he negotiated the wrong way round. He then drove along the wrong side of the road, went through a red light and accelerated to speeds of up to 80 mph. When he tried to overtake another vehicle he collided with an island in the centre of the road. Two tyres burst. He continued. He came to a junction and crashed into railings. He and his passengers then alighted from the car and ran off; but he was found hiding in bushes in a garden and was arrested.

4

The appellant is a man with very many previous convictions, the vast majority being for motoring offences. He had some seventeen convictions for taking vehicles without consent, of which six were for the aggravated form of that offence. Unsurprisingly in those circumstances he had numerous convictions for driving whilst disqualified. He had one previous conviction for dangerous driving. The present case, however, did not concern a motor vehicle established to have been taken without consent.

5

We deal first with the question of the anti-social behaviour order. The police, through the prosecution, sought such an order before the sentencing judge. For both counsel and the judge this was a novelty. We are told that no previous criminal anti-social behaviour order had been made in the Teesside Crown Court. There was some discussion between counsel and the judge, of which we have the transcript. The order originally sought included a number of wide restrictions, such as: not to behave in any way that intimidates or seeks to intimidate one or more persons not of the same household as himself, and other like restrictions, entirely outside the context of motoring offences. The judge rightly considered those were inappropriate in the present case. In one instance he thought the restriction too imprecise to be enforceable anyway. But he was prepared to make an order in the following terms:

"That the defendant, Lee Kirby, must not (1) drive, attempt or drive or allow himself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and (2) drive or attempt to drive a motor vehicle until after the expiration of his period of disqualification."

Thus the anti-social behaviour order did no more than to prohibit him from committing further offences of that same description, and the judge made it for a period of ten years.

6

In his sentencing remarks the judge dealt with the matter in this way. He said:

"I am going to make the anti-social behaviour order. The terms will be this: that you must not drive, attempt to drive or allow yourself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and, secondly, you must not drive or attempt to drive a motor vehicle until after the expiration of a period of disqualification. All right? You understand the purpose of that.

THE APPELLANT: Yes.

THE JUDGE: Because it actually increases the penalty that the courts can impose on you for those offences, which are now, maximum six, months. It increases the penalty to five years."

It is clear to us from the discussion with counsel and from those sentencing remarks that the judge's purpose in making this order was to secure the result that if the appellant...

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13 cases
  • R v H
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 2 February 2006
    ...are believed to be too modest. That is a distinct point which does not arise here. The principle is covered by two decisions of this Court, R v Kerby [2005] EWCA Crim 1228 and R v Boness [2005] EWCA Crim 2395. As we repeat, that is a distinct principle which relates to the circumstances in ......
  • R v Lawson (Adam)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 1 July 2005
    ...to the court to be allowed to drive after the period of disqualification is ended. 10 He also relied on a recent decision of this Court R v Kirby [2005] EWCA Crim 1228. There the appellant, who was 29, had pleaded guilty to dangerous driving and driving whilst disqualified and been sentence......
  • R v Williams (Theo Yestin)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 28 June 2005
    ...of such a regularity and type and in such an area that they do constitute antisocial behaviour." However, in R v KirbyUNK (unreported (2005) EWCA Crim 1228), in which Hall was not cited, the court said: "To make an antisocial behaviour order in a case… where the underlying objective was to ......
  • R v Dean Boness; R v Shaun Anthony Bebbington
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 14 October 2005
    ...that an ASBO should not be used merely to increase the sentence of imprisonment which an offender is liable to receive. In Kirby [2005] EWCA Crim 1228 an ASBO had been made prohibiting the offender from driving, attempting to drive or allowing himself to be carried in any motor vehicle whic......
  • Request a trial to view additional results
1 books & journal articles
  • Developments in Response to Youthful Anti-Social Behaviour
    • United Kingdom
    • Youth Justice No. 5-3, December 2005
    • 1 December 2005
    ...the powers ofsentence beyond the maximum penalty that would be available on conviction of thesubstantive offence. Thus in R v Kirby [2005] EWCA Crim 1228, a s.1C order imposed by the Crown Court– on conviction of dangerous driving and driving whilst disqualified – had specifiedfirst that th......

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