R v Shane Tony P; R v Shane Tony Parkin

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE,MR JUSTICE HENRIQUES
Judgment Date03 February 2004
Neutral Citation[2004] EWCA Crim 287
Docket NumberNo. 2003/05750/A2
Date03 February 2004

[2004] EWCA Crim 287

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London

WC2A 2LL

Before:

The Lord Chief Justice of England and Wales

(The Lord Woolf of Barnes)

Mr Justice Richards and

Mr Justice Henriques

No. 2003/05750/A2

Regina
and
Shane Tony

DR D THOMAS appeared on behalf of THE APPELLANT

MISS J M DAGNALL appeared on behalf of THE CROWN

Tuesday 3 February 2004

THE LORD CHIEF JUSTICE

I will ask Mr Justice Henriques to give the judgment of the court.

MR JUSTICE HENRIQUES
1

In addition to considering the length of this sentence, this appeal focuses upon the propriety of courts making anti-social behaviour orders and suspending such orders pending the release from custody of the defendant.

2

The appellant has the leave of the single judge to appeal firstly against two incidental unlawful sentences, which do not affect the sentences to be served, and to argue matters relating to the anti-social behaviour orders. The full court today has granted leave to appeal against the totality of the sentence.

3

The appellant, who was born on 7 May 1987, appeared before Judge Ensor at the Manchester Crown Court when he was 16 years and almost two months old. He is now 16 years and nearly nine months old. He pleaded guilty in the Crown Court sitting at Manchester to a total of twelve offences, all of which took place between 20 and 26 March 2003, when he was 15 years and 10 months old.

4

On the first count he was sentenced to twelve months' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an assault with intent to rob. He had chased a 12 year old boy across a park and hit him with a stick whilst demanding money and his mobile phone.

5

Count 2 was a charge of theft for which a concurrent sentence of twelve months' detention purporting to be pursuant to section 91 was passed. The appellant approached a 14 year old boy, told him that someone had stolen his mobile phone and asked to look at the phone belonging to that boy. The boy produced his phone and the appellant grabbed it before cycling off.

6

Count 3 was a charge of robbery for which a consecutive sentence of 12 months' detention was passed. The appellant approached a 15 year old boy and threatened to hit him with a bat unless he handed over his phone. When he did so the appellant snatched it and ran off.

7

Counts 4-11 involve four allegations of false imprisonment and four linked allegations of attempted robbery for which sentences of two years' detention said by the judge to be "on count 4 consecutive on count 4, concurrent on all other counts…." Four 14 year old boys were detained in a park for a considerable time. The appellant threatened to knife them if they tried to leave. He forced one of them to dance for him and reduced that boy to tears. He also demanded money from all four boys.

8

Count 12 was a charge of theft for which a concurrent twelve-month sentence of detention was imposed again purporting to be pursuant to section 91. The appellant approached and asked to see the phone of a 14 year old boy. When the boy produced the phone the appellant snatched it from his hand.

9

The total sentence was expressed to be four years' detention. Doubtless that was the judge's intention, although the expression "consecutive on count 4 and concurrent on all other counts" permits of the argument that in fact sentences totalling only three years were passed. We proceed, however, on the basis that this was no more than a slip of the tongue and that sentences on counts 1, 3 and 4 were all intended to run consecutively.

10

The most convenient starting point is to make the necessary correction in relation to counts 2 and 12. So far as section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applies to those aged at least 14 and under 18, the Act provides that offenders between those ages who are convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, other than an offence the sentence of which is fixed by law (indecent assault, causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs). It follows that the power to impose detention under section 91 does not apply to the offence of theft. Accordingly, the sentences of detention on counts 2 and 12 must necessarily be quashed. Rather than substitute sentences of 12 months' conditional discharge on each count, it appears to us to be appropriate that no separate penalty be imposed in relation to either of those matters. Since the sentences were in any event ordered to run concurrently, the overall sentence is in no way affected.

11

The next criticism relates to the judge's failure to state in terms that he was giving the appellant credit for his pleas of guilty. It is beyond argument that those who plead guilty may expect some reduction in sentence, although there is no statutory right to such discount. Section 152 of the Powers of Criminal Courts (Sentencing) Act provides:

"(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court shall take into account —

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and

(b) the circumstances in which the indication was given.

(2) If, as a result of taking into account any matter referred to in subsection (1) above, the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, it shall state in open court that it has done so."

There was no such statement in the present case.

12

It has been said more than once (see R v Fearon [1996] 2 Cr App R(S) 25, and R v Aroride [1999] 2 Cr App R(S) 406) that it is highly desirable that a sentencing judge in every case makes it absolutely plain to a defendant that he has been given credit for his plea of guilty; otherwise there is likely to be a reasonable possibility that the plea of guilty was not taken into consideration.

13

It is clear from a consideration of the judgment of this court in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) 77 ( R v Lobban and Sawyers and R v Stephen Q) that a plea of guilty, the age of the offender, the number of previous convictions, the degree of violence used, the number of offences committed, and whether a team of offenders was involved, are all relevant in determining where in the eighteen month to five year bracket an offender should be placed, having committed offences of robbery on persons using mobile phones.

14

This appellant was 15 at the time of the offences. He pleaded guilty. He has one previous conviction for assault occasioning actual bodily harm, five previous convictions for theft, but no earlier convictions for robbery. None of his victims appears to have suffered physical injury. These offences were not committed as part of a gang. Further, this was his first custodial sentence. Without a plea of guilty the sentences passed indicate a starting point of five years or more which, in our judgment, is excessive. Giving due credit for the pleas of guilty, avoiding as they did a number of young witnesses giving evidence, and further, the appellant is able to rely on an early childhood wherein he was disadvantaged in a number of respects not of his own making, we take the view that the appropriate sentence, giving due credit for these matters, would have been one of three years' detention.

15

The remainder of the appeal relates to the order under section 1C of the Crime and Disorder Act 1998, made by the learned judge immediately after the appellant had been sentenced to the term of four years' detention. The effect of the order was to prevent the appellant from acting in various ways, principally excluding him from two parks in the locality and from Manchester Airport. The duration of the restraint was stated to be for a period of two years after the appellant's release from custody.

16

A problem has arisen by reason of the fact that the order served and signed by the judge was not the same as that indicated by him in court. Be that as it may, the judge clearly intended to suspend the order until the appellant's release from custody, and it was then to apply for the duration of two years.

17

Section 1C was inserted into the Crime and Disorder Act 1998 by the Police Reform Act 2002. It came into force on 2 December 2002. It is accepted that the section applies in this case, the appellant having been convicted of a relevant offence. So far as relevant the section reads:

"(2) If the court considers —

(a) that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him,

it may make an order which prohibits the offender from doing anything described in the order.

….

(5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.

(6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged.

….

(8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning...

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