Debenham, R. v [2007] EWCA Crim 891 (23 March 2007)

Neutral Citation Number: [2007] EWCA Crim No. 2006/05954/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL 23 March B e f o r e : MR JUSTICE LLOYD JONES and THE RECORDER OF MANCHESTER (Sitting as a Judge of the Court of Appeal, Criminal Division) ____________________ R E G I N A - v - MICHAEL LAWRENCE DEBENHAM ____________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) ____________________ MR N COTTER appeared on behalf of THE APPELLANT ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE LLOYD JONES: I will ask the Recorder of Manchester to give the judgment of the court. THE RECORDER OF MANCHESTER: On 9 November 2006, the appellant appeared at the Crown Court at Ipswich, having been committed there for sentence, for two breaches of an Anti-Social Behaviour Order made on 8 August 2006, two breaches of a suspended sentence order made on the same day and for an offence of theft. Mr Recorder Richard Jones QC passed concurrent sentences of three years' imprisonment for each of the breaches of the Anti-Social Behaviour Order and six months for the theft. No orders were made in respect of the breaches of the suspended sentence order. It would have been open to the Recorder to order the appellant's return to custody in relation to a sentence of imprisonment that had been passed on 7 June 2006, but the Recorder did not do so. The appellant appeals against the sentences to which we have referred by leave of the single judge. The history is a complicated one. It is necessary to begin with an Anti-Social Behaviour Order made on 15 May 2006. It was of five years duration. Part of it prohibited the appellant from being under the influence of alcohol within the boundaries of Ipswich Borough. This doubtless had regard to the fact that his lengthy criminal record included six offences of being drunk and disorderly. As some might have predicted, the appellant acted in total disregard of the Anti-Social Behaviour Order. On the very day it was made, he was found drunk in Ipswich. For this breach he appeared before the South East Suffolk Magistrates' Court on 6 June 2006. He was made the subject of a community order with a supervision requirement. Later that same day (6 June) he was again found under the influence of alcohol in Ipswich. On the following day, again before the South East Suffolk Magistrates' Court, he received a sentence of six months' imprisonment for this second breach. The sentence was subsequently reduced on appeal to the Crown Court to one of four months' imprisonment. From that sentence the appellant was released on 7 August 2006. Later that same day he was again found drunk in Ipswich. On 8 August he was back before the South East Suffolk Magistrates' Court for this third breach. This time he received four weeks' imprisonment suspended for twelve months with a six month supervision requirement and a further Anti-Social Behaviour Order was made, expressed to last until 15 May 2011, prohibiting the appellant from being in possession of alcohol, aftershave or other intoxicants in a public place within the Ipswich Borough. Against that background, the matters which brought him yet again before the court were these. At about 3pm on 23 September 2006, police officers were summoned to the centre of Ipswich. There they found the appellant again drunk. He had with him a bag that was found to contain a can of super-strength lager and four containers of aftershave. He was arrested for being in breach of the second of the two Anti-Social Behaviour Orders to which we have referred. This was the first of the offences for which he was sentenced to three years' imprisonment by the Recorder. On 25 September 2006, he pleaded guilty to that breach and was committed for sentence on bail. Later that same day, 25 September, he went to a Boots store and stole a packet of razor blades and some aftershave to the total value of just over £13. The police were called and the appellant was arrested. He was charged with a further breach of the Anti-Social Behaviour Order of 8 August 2006 and with an offence of theft. On the following day he was committed (now in custody) for sentence. These were the second and third of the offences for which he was sentenced by the Recorder. It follows that the Recorder was dealing with the fourth and fifth breaches of Anti-Social Behaviour Orders which the appellant had committed in just over four months. The appellant was aged 55 when he was sentenced. He was homeless and an alcoholic. He had made 37 previous appearances in respect of no less than 61 offences within which offences of criminal damage, possessing offensive weapons, bladed articles and firearms, being drunk and disorderly and using threatening behaviour predominated. He had received a variety of custodial and non-custodial sentences. The Recorder had a pre-sentence report that had been prepared in relation to the appellant's court appearance on 6 June 2006, and an addendum dated 17 October 2006. The former report indicated that the appellant did not fully appreciate what an Anti-Social Behaviour Order meant; neither did he understand why he was being given one. He accepted that he was an alcoholic. He put it down to the loss of his father when he was aged only 20. He had lived rough for the best part of fourteen years. The appellant accepted that he was simply unable to abstain from alcohol in the community and not surprisingly, therefore, there was a high risk of re-offending. The second of the two reports recorded the appellant's denial that he ever drank aftershave. Again he said that he could not see the point in an Anti-Social Behaviour Order. He had no wish to address his alcohol addiction, but was willing to accept help to find accommodation. There was a high risk of re-offending and a medium risk of harm to the public. Any further supervision by the Probation Service was seen as pointless. In passing sentence the Recorder accepted that the appellant had suffered difficulties in his life and seemed unable to cope without drink, but observed that there were two separate breaches of an Anti-Social Behaviour Order and said that the courts took a strong line in respect of such breaches. The orders were there to protect the public and had been flouted by the appellant. But for his pleas of guilty, said the Recorder, the sentences would have been ones of four years' imprisonment. He then passed the sentences of three years' imprisonment, as we have indicated. In presenting this appeal it is inevitably conceded by Mr Cotter on the appellant's behalf that the fact that these were the fourth and fifth breaches of Anti-Social Behaviour Orders within a short period is an aggravating feature of the case. So is the fact that the offences were committed before the expiry date of the prison sentence of four months to which we have referred and during the currency of the suspended sentence to which we have referred. Notwithstanding that, it is submitted that insufficient credit was given for the guilty pleas which should in the circumstances have attracted a discount of one-third rather than one-quarter. Moreover, it is submitted that the starting point for the sentences was too high, taking into account the actual conduct which constituted the breaches of the orders; and that too much emphasis was placed on public protection rather than a consideration of the actual criminality. In that regard it is to be observed that the conduct which brought the appellant before the court was, first, being drunk in possession of a can of strong lager and some aftershave, and, secondly, stealing goods to the value of just over £13, including aftershave, but in circumstances in which, so far as we can ascertain, he was not drunk on that occasion. Mr Cotter on the appellant's behalf has also relied upon four authorities: R v Thomas [2005] 1 Cr App R(S) 9, R v Braxton [2005] 1 Cr App R(S) 36 , [2004] EWCA Crim 1374 R v Dickinson [2005] 2 Cr App R(S) 78, and R v Bulmer [2006] 2 Cr App R(S) 55 , [2005] EWCA Crim 3516 each of which turns on its own facts but which, taken collectively, seem to us to indicate that a lower level of sentencing would be appropriate in a case such as this than that imposed by the Recorder. We accept that it is important that sentences for breaches of Anti-Social Behaviour Orders should reflect the need to ensure compliance with court orders and to protect the public. This appellant can only reasonably be described as a serial breaker of Anti-Social Behaviour Orders. However, taking into account the authorities to which we have referred, the plea of guilty and the actual nature of the conduct which brought the appellant before the Crown Court, we have concluded that the sentences of three years were too long and should be replaced by sentences of 18 months' imprisonment. We therefore substitute the latter for the former and to that extent this appeal is allowed. The sentence of six months' imprisonment in respect of the theft will stand. We, too, think it inappropriate either to activate the suspended sentence to which we have referred or to order the appellant's return to custody in relation to the prison sentence imposed on 7 June 2006. ___________________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII