Case No: 98/3270/Y2, 98/3871/Y4
98/3827/Z2, 98/3618/W4, 98/3623/W4
98/3826/W3, 98/3394/W4, 98/3990/Z2
98/7533/S1
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 30th July 1998
	B e f o r e :

	THE LORD CHIEF JUSTICE OF ENGLAND
	(Lord Bingham of Cornhill)

	MR JUSTICE Ian KENNEDY
	and 

	MR JUSTICE COLLINS
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	R v CRAIG HOWELLS
	R v NICHOLAS ASHBY
	R v  DARIUS GLOWACKI
	R v KEVIN ROBSON and DAVID HOWARD
	R v MARTIN JARVIS
	R v STUART MARSTON
	R v MOHAMMED SHANOOR
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	Handed-down judgment of Smith Bernal Reporting Ltd
	180 Fleet Street, London EC4A 2HD
	Tel No: 0171 421 4040  Fax No 0171 831 8838
	(Official Shorthand Writers to the Court)
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MR P RICHARDS appeared on behalf of the Applicant Howells
MR J COLLINS appeared on behalf of the Applicant Ashby
MR EL WHAITES appeared on behalf of the Appellant Glowacki
MR S FRANKLIN appeared on behalf of the Appellants Robson & Howard
MR VAN DER ZWART appeared on behalf of the Appellant Marston
MR MF BUTTERWORTH appeared on behalf of the Applicant Shanoor
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	JUDGMENT
	(As approved by the Court)
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	Crown Copyright
Lord Chief Justice:

	In each of these cases a relatively short sentence of imprisonment or detention was imposed.  The longest sentence under review was 12 months’, the shortest 4 months’.  Factually, the cases have little or nothing in common.  Our purpose in giving this reserved judgment in all the cases together is to give such little help as we can in resolving one of the most elusive problems of criminal sentencing:  when is an offence so serious that only a custodial sentence can be justified for it?
          	
	Sections 1 and 2 of the Criminal Justice Act 1991, as amended, contain the overriding provisions which govern the exercise of the court’s discretion to impose a custodial sentence.  So far as relevant to the present issues these sections provide:
	
	“1.   (2)  Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion -

	 that the offence, or the combination of the offence and one
	of more offences associated with it, was so serious that only
	such a sentence can be justified for the offence;  or ..
	
	        (3) Nothing in subsection (2) above shall prevent the court from passing a custodial sentence on the offender if he fails to express his willingness to comply with a requirement which is proposed by the court to be included in a probation order or supervision order and which requires an expression of such willingness.
	
	       (4)  Where a court passes a custodial sentence, it shall be its duty -
	
		in a case not falling within subsection (3) above, to state in open court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion;  and

		in any case, to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him. 

	(2) Subject to sections 3(2) and 4(2) of that Act [the Crime(Sentences) Act 1997], the custodial sentence shall be -  

		for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it;  or ..”

	These provisions were the successors to somewhat comparable provisions in section 1(4) of the Criminal Justice Act 1982, which contained the words “the offence was so serious that a non-custodial sentence cannot be justified”.  This expression was considered by this court in R v Bradbourn (1985) 7 Cr.App.R.(S) 180 at 182 where Lawton LJ, delivering the judgment of the court, said:

	“This section of the Criminal Justice Act 1982 has created much difficulty for the courts because it is pregnant with a number of ambiguities.  For example, what is meant by the phrase, “necessary for the protection of the public”?  Does it refer to the future activities of the offender or does it refer to the fact that the particular offender’s offence is of a kind which may be dangerous to the public and from which the public require protection?  Further, there is nothing in the subsection to indicate what is meant by the phrase, “so serious that a non-custodial sentence cannot be justified”.  Does it refer to the label which is put on the offence or does it refer to the circumstances of the offence?  In our judgment, it is unlikely that it refers to the label put on an offence.  An illustration will show why.  A youth of 17 may wrench a handbag out of the hand of a woman out shopping - a common kind of offence.  The force used to achieve the wrenching may take the offence just over the border from theft into robbery.  It is an unpleasant offence, but is it so serious, if it is a first offence, that a non-custodial sentence cannot be justified?  Another youth of the same age may do the same and in addition punch the woman in the face breaking her jaw.  The label on the offence will be the same, but the circumstances will be different.  
	
	The application of this section by the courts has come under considerable criticism, most from academic writers.  In the May 1985 number of the Criminal Law Review, under the heading “A duty unfulfilled,” the editor said this:
	
		“Ever since the section came into force, there has been a manifest need for guidance on the considerations which may or may not bring a case within one of the grounds specified in section 1(4).  On several occasions the Court of Appeal has failed even to consider the relevance of section 1(4) in a case to which it clearly applies .”
		
	The learned editor then set out a number of such cases.  He may not appreciate that this Court and other courts can recognise an elephant when they see one, but may not find it necessary to define it.  
	
	In this case we are not called upon to construe any of the phrases in section 1(4) other than the phrase, “so serious that a non-custodial sentence cannot be justified”.  It may be of help to academics lecturing in criminology to have definitions given by this Court of other parts of the subsection, but any attempt by this Court to do so in this case would be obiter.  In our judgment the phrase, “so serious that a non-custodial sentence cannot be justified” comes to this:  the kind of offence which when committed by a young person would make right-thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one.  We think that is as good guidance as we can give to courts and that any attempt to be more specific would only add to the difficulties of courts and not help them.”

	In R v Cox [1993] 1 WLR 188 (1993) 14 Cr.App.R. (S) 479 these observations were held to apply to the slightly different language of section 1(2)(a) of the 1991 Act, which was of wider application than the earlier section.  But the difficulty of definition to which the court referred in R v Bradbourn is a real and persistent one.  There is no bright line which separates offences which are so serious that only a custodial sentence can be justified from offences which are not so serious as to require the passing of a custodial sentence.  But it cannot be said that the “right-thinking members of the public” test is very helpful, since the sentencing court has no means of ascertaining the views of right-thinking members of the public and inevitably attributes to such right-thinking members its own views.  So, when applying this test, the sentencing court is doing little more than reflect its own opinion whether justice would or would not be done and be seen to be done by the passing of a non-custodial sentence.  In the end, the sentencing court is bound to give effect to its own subjective judgment of what justice requires on the peculiar facts of the case before it.

	It would be dangerous and wrong for this court to lay down prescriptive rules governing the exercise of that judgment, and any guidance we give, however general, will be subject to exceptions and qualifications in some cases.  We do however think that in approaching cases which are on or near the custody threshold courts will usually find it helpful to begin by considering the nature and extent of the defendant’s criminal intention and the nature and extent of any injury or damage caused to the victim.  Other things being equal, an offence which is deliberate and premeditated will usually be more serious than one which is spontaneous and unpremeditated or which involves an excessive response to provocation;    an offence which inflicts personal injury or mental trauma, particularly if permanent, will usually be more serious than one which inflicts financial loss only.  In considering the seriousness of any offence the court may take into account any previous convictions of the offender or any failure to respond to previous sentences (1991 Act, section 29(1)) and must treat it as an aggravating factor if the offence was committed while the offender was on bail (1991 Act, section 29(2)).

	In deciding whether to impose a custodial sentence in borderline cases the sentencing court will ordinarily take account of matters relating to the offender:

	The court will have regard to an offender’s admission of responsibility for the offence, particularly if reflected in a plea of guilty tendered at the earliest opportunity and accompanied by hard evidence of genuine remorse, as shown (for example) by an expression of regret to the victim and an offer of compensation.  Attention is drawn to section 48 of the Criminal Justice and Public Order Act 1994.

	Where offending has been fuelled by addiction to drink or drugs, the court will be inclined to look more favourably on an offender who has already demonstrated (by taking practical steps to that end) a genuine, self-motivated determination to address his addiction.

	Youth and immaturity, while affording no defence, will often justify a less rigorous penalty than would be appropriate for an adult.  

	Some measure of leniency will ordinarily be extended to offenders of previous good character, the more so if there is evidence of positive good character (such as a solid employment record or faithful discharge of family duties) as opposed to a mere absence of previous convictions.  It will sometimes be appropriate to take account of family responsibilities, or physical or mental disability.  

	While the court will never impose a custodial sentence unless satisfied that it is necessary to do so, there will be even greater reluctance to impose a custodial sentence on an offender who has never before served such a sentence.

Courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things.  Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.

	Where the court is of the opinion that an offence, or the combination of an offence and one or more offences associated with it, is so serious that only a custodial sentence can be justified and that such a sentence should be passed, the sentence imposed should be no longer than is necessary to meet the penal purpose which the court has in mind.  We draw attention to the important observations of the Vice-President (Rose LJ) giving the judgment of the court in R v Ollerenshaw, unreported, 23 April 1998, where he said:

	“When a court is considering imposing a comparatively short period of custody, that is of about 12 months or less, it should generally ask itself, particularly where the defendant has not previously been sentenced to custody, whether an even shorter period might be equally effective in protecting the interests of the public, and punishing and deterring the criminal.  For example, there will be cases where, for these purposes, 6 months may be just as effective as 9, or 2 months may be just as effective as 4.  Such an approach is no less valid, in the light of today’s prison overcrowding, than it was at the time of R v Bibi (1980) 71 Cr. App. R 360.”

R  v  HOWELLS:

	The applicant Craig Howells (now aged 26) pleaded guilty to affray in the Crown Court at Merthyr Tydfil on 6 April 1998 and on 29 April he was sentenced to 9 months’ imprisonment.  He appeared with two co-defendants, his younger brother Andrew (aged 24) and Robert Baker (then aged 34).  Andrew Howells pleaded guilty to inflicting grievous bodily harm and to assault occasioning actual bodily harm, for which offences he was sentenced to 6 months’ imprisonment.  He was also sentenced to a consecutive term of 3 months’ for drug offences, making a total of 9 months’ imprisonment.  Robert Baker pleaded guilty to affray and was sentenced to 9 months’ imprisonment.  The applicant seeks leave to appeal against the sentence of 9 months’ imprisonment imposed upon him.

	On the evening of Monday 15 December 1997 the landlord of the Court of Requests public house in Georgetown, Merthyr Tydfil, went out with his wife and a barmaid and her husband.  While they were out a group which included the applicant and the two defendants arrived at the Court of Requests and behaved in a rowdy manner.  There was some horseplay both before and after the return of the landlord to the public house.  In the course of this, some damage was done (not, it would seem, by the applicant) to the shoes of the barmaid.  As a result of this the landlord approached the group asking them to pay for the damage to the shoes.  This gave rise to an argument, and in due course the applicant and his friends were either asked or decided to leave the public house.  The applicant left.  But his co-defendants remained inside the public house, where a fight broke out.  In the course of this Andrew Howells punched the landlord several times, and Robert Baker exchanged blows with the barmaid’s husband.  In due course the fight which had begun inside the public house continued outside, and at that stage the applicant became involved in violence for the first time.  A man named Gareth Thomas struck him on the back of his head and he then retaliated by striking Gareth Thomas a number of blows in what amounted to retaliation.  In the course of the fight outside the public house Andrew Howells kicked Gareth Thomas in the back and also punched the landlord on the jaw with sufficient force to fracture it in two places.  Robert Baker was also involved outside the public house in scuffling with the landlord.  

	The applicant’s plea of guilty was tendered and accepted on the basis that he had not been involved in any fighting inside the public house, that his account (as summarised above) of how  he had become involved outside the public house was accurate, that he had punched Gareth Thomas in what was described as an “excess of self-defence”, that he had delivered no kicks and that he had had no other involvement in violence on this occasion.  As a result of this incident Gareth Thomas sustained a loss of consciousness for 4 minutes.  He suffered pain, swelling, bruising and tenderness to the left cheek and left jaw, and his left eye was closed.  There was a one-inch full thickness laceration of his lower lip, and bruising to the right side of his head and forehead and grazing to his left lower elbow.

	The applicant had several previous convictions.  Much the most serious of these was an offence of violent disorder for which the applicant was fined in December 1991 at the age of 19.  He had never served a custodial sentence.  Robert Baker also had a number of previous convictions, including a serious offence of wounding, committed while on bail, for which he had been sentenced to imprisonment.  Andrew Howells had only one previous conviction, a relatively minor drugs offence.  

	The sentencing judge expressed the view that these offences were so serious that only a custodial sentence could be justified.  With that opinion we agree.  No doubt fuelled by drink, the applicant and his friends behaved in a rowdy and provocative manner, which led to serious violence being inflicted on the landlord and his friends.  The applicant did not come before the court with a clean record, and we are clearly of opinion that his conduct on this occasion was such as to call for a custodial penalty.  The applicant did, however, recognise his responsibility by pleading guilty to affray as soon as that count was included in the indictment.  His involvement in the violence which took place was substantially less than that of his co-defendants, he struck no blow until he was himself struck, he used no weapon and he did no kicking.  He had never been to prison before.  It is a minor, but not irrelevant, factor that he has the sole parental responsibility for a very young child.

	While we share the judge’s view that a custodial penalty was required, we conclude that in all the circumstances a shorter term of custody was enough to bring home to this applicant and to the public at large the unacceptability of conduct of this kind.

	It is for these reasons that, at the conclusion of argument before us, we indicated that we granted leave to appeal, allowed the appeal, quashed the sentence of 9 months’ imprisonment and substituted a sentence of 4 months’ imprisonment.

R  v  ASHBY:

	Nicholas Alexander Ashby, who is aged 30, seeks leave to appeal against a sentence of 4 months’ imprisonment passed on him on 12 June 1998 in the Crown Court at Taunton on his plea of guilty to dangerous driving.  He was disqualified and ordered to take a driving test, but no complaint is made of those orders.  He also pleaded guilty to using a motor vehicle without insurance, for which no separate penalty was imposed, but his licence was endorsed.  

	Just before midnight on 20 January 1998 the attention of two police officers on duty in Minehead was drawn to a red Austin Metro parked in a cul-de-sac.  The applicant came out of a nearby house and proffered certain documents to the officers relating to the vehicle.  They noticed that his speech was slurred and he smelt of drink.  One of the officers asked the applicant if he owned the car and he said he did, having just bought it.  He was asked if he had driven the car and replied that he had not, because he had had far too much to drink.  The officers remained in the vicinity and very shortly afterwards heard a car start and saw the Metro driving towards them.  They followed with the intention of stopping it when it was safe to do so.  They saw that the applicant was driving.  To begin with, the Metro was driven at a slow pace, but when the police vehicle’s blue lights were illuminated the Metro accelerated to a speed of some 60 miles per hour.  They saw the Metro driven across two “give way” junctions and around adjoining streets.  After following the Metro for nearly a mile, the police officers lost contact with it and found it abandoned nearby a short time later.  The applicant was arrested at 3.20 a.m. the next morning and was taken to a police station, but was not breath-tested.  He was interviewed about an hour later, when he denied being the driver of the Metro but admitted that he had drunk a bottle of wine.

	The applicant had a substantial record of previous convictions, for which he had been fined, put on probation, sentenced to community service and sent to prison.  A number of these convictions were of motoring offences, although none of them was of dangerous driving.  

	The sentencing judge rightly recognised the risk which the applicant had presented to other road users, even though no danger was in the event caused;  and he very rightly regarded the offence as aggravated by clear evidence that the applicant had been drinking to excess.  It is true that the distance covered by the applicant with the police in pursuit was relatively short, but that was because the applicant very quickly succeeded in losing touch with the police car.  The incident arose because the applicant was seeking to escape from the police.

	We have no doubt but that this offence of dangerous driving was in all the circumstances so serious that only a custodial sentence could be justified.  We consider the term of 4 months’ to have been entirely appropriate.  As indicated at the conclusion of argument, we refused leave to appeal against this sentence.

R  v  GLOWACKI:
	Dariusz Glowacki (aged 22) appeals against a sentence of 6 months’ imprisonment  imposed by the Southwark Crown Court on 27 May 1998 on his plea of guilty to theft.  He appeals with leave of the single judge, who on 30 June granted bail.

	On the afternoon of 8 November 1996 the appellant and two women entered Barkers store in Kensington High Street.  They were observed on the store’s closed circuit television cameras and were seen to be acting suspiciously.  All three were looking round and observing the movements of members of staff, and the appellant was continually covering the movements of the two women.  The store’s security officers notified the police and officers stopped the appellant and the two women as they left the store.  The women, who were wearing long skirts, appeared to be having great difficulty in walking, and it was apparent that they were concealing bulky items under their skirts.  

	The appellant was arrested and made no reply when cautioned.  All three were taken to the police station, and the women were found to have two pairs of jeans and a number of bottles of perfume and after-shave concealed in what were described as “apron-type bags” under their skirts.  The total value of the goods in the bags was £449.  The appellant was interviewed the same day, with the assistance of a solicitor and a Polish interpreter.  He said that he had travelled to Kensington with the two women, who were his cousins, to visit the shops and “have a look at things”.  He said that he had never seen the apron-type bags before and had not known that the women were wearing them.  He denied seeing them put the goods in the bags and denied trying to prevent the women’s actions being seen or recorded.    
	
	The two women have disappeared and were never brought to trial and an indictment was preferred against the appellant alone.  He was arraigned in the Crown Court on 28 May 1997 and pleaded guilty.  The case was then adjourned for the preparation of pre-sentence reports, and this led to some delay, partly because of difficulties in interpretation and partly (it would seem) because of non co-operation by the appellant.  When the appellant appeared for sentence on 12 August 1997 the judge indicated that he proposed to pass a custodial sentence, and the case was further adjourned for fresh evidence to be obtained.  When the case was again listed for sentence on 26 August 1997 the appellant failed to attend and a warrant not backed for bail was issued.  We are told that, very shortly before this date, the appellant learned that his former wife (the mother of his child) had been involved in a very serious road accident in Poland, where she was in a coma for a lengthy period, and he returned to Poland to be with her.  He returned voluntarily to this country and was arrested for other matters on 20 May 1998.  This led to his appearance in the Southwark Crown Court a week later, when the sentence now under appeal was passed.

	The appellant always maintained that he was not privy to his cousins’ intentions until a late stage of the enterprise.  The sentencing judge did not express scepticism about this version of events during counsel’s mitigation on behalf of the appellant, and he himself did not give evidence of his knowledge and intentions.  Whatever doubts we may have, we must at this stage accept that the appellant may have been ignorant of the preparations made by his cousins and may have had no part in the planning of this expedition.  But the fact remains that this was an organised and deliberate shoplifting expedition, at least on the part of the women, and by his plea of guilty the appellant accepted responsibility for his participation in it.

	We were referred to R v Moss (1986) 8 Cr. App R. (S) 276, R v Goldrick (1988)
 10 Cr.App.R.(S) 346 and R v Mariconda (1988) 10 Cr. App.R (S) 356, which show that short sentences of imprisonment may be appropriate where defendants are convicted of shoplifting after pleading not guilty.  In each of those cases the value of the goods involved was relatively small, but in each there was an aggravating factor, the involvement of children in the commission of the offence or its commission while on bail for offences of deception.

	The judge faced a difficult problem in deciding the correct sentence for the appellant.  As an applicant for political asylum, the appellant was not permitted to work and was dependent on income support.  He therefore had limited means with which to pay a fine.  His failure to co-operate fully with the probation officer threw doubt on whether a probation order would be successful, and this was not recommended.  He was judged to be suitable for a community service order, but it might be thought doubtful whether he would co-operate with such an order if made.  Nonetheless, and without wishing to lay down any general rule, we do not in all the circumstances regard this offence as so serious that only a custodial sentence could be justified for it.  We consider that a relatively short community service order, with a clear explanation to the appellant of the consequences of non-compliance, would at the date of sentence have been the appropriate order.

	For these reasons we indicated at the conclusion of argument that we allowed the appeal, quashed the sentence of 6 months’ and substituted (having regard to the term which the appellant had already served) an order that he be conditionally discharged for 12 months from 13 July 1998.

R  v  ROBSON and HOWARD:
	On 1st May 1998 in the Crown Court at Peterborough the appellants Kevin Wayne Robson and David Leslie Howard pleaded guilty to a count of assault occasioning actual bodily harm, and on 22 May each of them was sentenced to 6 months’ detention in a young offender institution.  They were born on 10 October 1979 and 28 October 1980 respectively and on conviction were respectively aged 18 and 17.  They appeal against sentence by leave of the single judge.  

	At about 4 p.m. on 29 December 1997 a young man (the complainant) was in the market square of St Neots carrying a case of cans of lager which he had just bought at an off-licence.  He passed a group of youths and the appellant Robson shouted “Give us a beer”.  The complainant thought he was joking and smiled and walked on.  Robson then ran up to him and punched him in the face with a clenched fist, saying “Don’t you grin at me”.  The complainant fell to his knees and put the case of beer on the ground.  He then tried to cover his face but was repeatedly kicked and punched by both appellants.  A member of the public shouted at the appellants and they ran off.  It was the appellant Robson who approached the complainant first, but both appellants pushed and kicked him numerous times.  The appellants were arrested several days later.  Robson said that he had little recollection of the incident as he had been drinking heavily.  Howard said that Robson had jostled the complainant and that it looked as if they were going to fight;  he had gone to help Robson as the complainant was bigger than him.

	When examined at hospital on the day of the incident, the complainant was found to be conscious and alert.  Examination of his head and facial region revealed a severe black eye, but without evidence of bony injury.  He was not detained in hospital, and was given ointment for his eye.

	Both these appellants were of previous good character, and both had exemplary work records.  Both pleaded guilty, and both impressed the probation officer as being genuinely ashamed of their behaviour.  It seems likely that both of them behaved as they did under the influence of a quantity of drink to which they were not accustomed.  Our attention was drawn to R v Furnell (1990) 12 Cr.App.R (S) 306 and R v Audit (1994) 15 Cr. App. R. (S) 36:  in each of these cases sentences of 6 months’ imprisonment imposed for significant but unpremeditated assaults occasioning actual bodily harm were reduced to 3 months’.

	We fully share the view expressed by the sentencing judge in this case that the offences committed by these appellants were so serious that a non-custodial sentence could not be justified.  Gratuitous violence, directed at members of the public who are going about their business and doing nothing whatever to provoke such violence, must attract and be understood to attract severe punishment.  Conduct of this kind, not least among the young, gives rise to very understandable public concern and cannot be tolerated.  There is, however, every reason to hope that these appellants will have learned their lesson.  They have never been convicted of behaving like this before.  They appear, apart from this disgraceful incident, to be decent young men.  While we consider that custody was appropriate, we consider that a very short term would in all the circumstances suffice.

	For these reasons we indicated at the conclusion of argument that we allowed both appeals, quashed the sentences of 6 months’ detention in a young offender institution and substituted sentences of 2 months’ in each case.

R  v  JARVIS:
	Martin Paul Jarvis (who is aged 30) pleaded guilty to affray in the Crown Court at Derby on 23 April 1998.  The case was adjourned for a pre-sentence report, but the appellant failed to attend a second interview with the probation officer with the result that an inconclusive report was before the court on 12 June 1998 when the appellant was sentenced to 6 months’ imprisonment.  A co-defendant 5 years younger than the appellant pleaded guilty to the same offence and was ordered to perform 120 hours of community service.  The appellant appeals against sentence by leave of the single judge.

	In the early hours of 31 October 1997 the appellant and his co-defendant made a large number of telephone calls to the home of the appellant’s ex-wife Julie.  The appellant was amicable in conversation but the co-accused was aggressive.  After about 8 calls Julie unplugged the telephone.  Later her boyfriend Mark arrived home and they both went to bed.  At about 3.40 a.m. they heard loud banging and Mark opened the bedroom door to see what was happening.  He saw the appellant coming up the stairs followed by the co-accused.  As he got to the top of the stairs the appellant shouted “I’m going to get you, you bastard” or words to similar effect.  Mark tried to close the door but the co-accused pushed it open and the appellant (according to Mark) grabbed him by the hair.  Julie telephoned the police and the intruders left.  After the police arrived two further telephone calls were received from the co-accused.  Police who attended at the address noticed that the lower door lock had been damaged and the door forced.  Officers went directly to the appellant’s home where the co-accused answered the door and said that the appellant was not in.  Officers entered and found the appellant in the house.  He said he had not been out.  He and the co-accused were then arrested.  When interviewed the appellant outlined a history of friction between himself and his former wife, culminating on the night of the offence in her refusal to let him have his passport which was at her home.  The appellant had been drinking heavily, and felt resentful towards his former wife’s new boyfriend who was living in what had been the matrimonial home.  He had gone to the house in a fury and kicked in the door.  He agreed that he had said that he was going to “get” his former wife’s boyfriend, but said that he had formed no intention as to what he was going to do to him.  

	The appellant had 15 year-old convictions for assaulting the police, but otherwise no record of violence apart from an assault occasioning actual bodily harm to his wife for which he had been put on probation in June 1994.  The co-accused also had a conviction in 1994, for an assault on the police for which he was fined £500.

	The pre-sentence report on the appellant described his reaction to the breakdown of his marriage as one of emotional distress, frustration and anger, with some apparent self-pity, but recorded the appellant’s acceptance that his conduct must have been extremely frightening to his former wife and her new partner and recorded him as saying that he had offered his sincere apologies to both of them.  His conduct on the night of the offence was attributed by the appellant to the drink he had consumed, although he did not rely on that as excusing or lessening the seriousness of his actions.  

	On behalf of the appellant, counsel advanced a number of arguments, some of which we judged to be more persuasive than others.  He submitted that there was a disparity between the sentences on the appellant and his co-accused.  This we do not accept.  Although it is true that the co-accused acted in an aggressive manner, he was a younger man, this was not his quarrel and it seems most unlikely he would have been involved but for the appellant.  Similarly, we cannot regard the conduct of the appellant as excused by the difficulties he was experiencing in his relationship with his new girlfriend.  Counsel was in our judgment on much stronger ground in relying on the appellant’s plea of guilty, on evidence that he sincerely regretted and had no thought of repeating his conduct, on the undoubted fact that the appellant, having broken into his former wife’s house, had made no serious attempt to inflict violence on her or her boyfriend and on evidence that he now accepted his former relationship as being finally over.

In passing sentence the judge said:

	“it is not to be tolerated that somebody goes into a house, breaks into a house in the early hours of the morning and terrifies the occupants.  Such behaviour is bound to be met with a prison sentence”.

	We agree.  In our judgment the offence committed by the appellant plainly called for a custodial sentence.  We have very carefully considered whether the 6 month term imposed by the judge was not also appropriate.  We are, however, mindful that this is the appellant’s first taste of custody as an adult, and there is every indication that he has learned his lesson.  We do not think that he will present any continuing danger to his former wife, her boyfriend or anyone else.
	
	For these reasons we indicated, at the conclusion of argument, that we allowed the appeal, quashed the sentence of 6 months’ imprisonment and substituted a sentence of 3 months’.

R  v  MARSTON:
	Stuart James Marston appeals by leave of the single judge against a sentence of 12 months’ detention in a young offender institution imposed on him in Shrewsbury Crown Court on 8 May 1998.  Sentence was then passed on his pleas of guilty to a single count in each of two indictments.  He was born on 10 July 1981, and is now aged just 17.

	His first plea of guilty was entered on 12 January 1998, when he was aged 16.  It was to an indictment charging him with assault occasioning actual bodily harm, an offence committed on 22 June 1997 when he had been aged 15.  He was charged with two co-defendants on that indictment, who were respectively aged 16 and 18 on conviction and who also pleaded guilty to the same offence.  The appellant and his two co-defendants were sentenced to 9 months’ detention in a young offender institution for that offence.  

	The appellant’s second plea of guilty was entered on 3 April 1998 when he was still aged 16.  On this occasion he pleaded guilty to an offence of using threatening, abusive or insulting words contrary to section 4 of the Public Order Act 1986 on 28 May 1997, when he had been aged 15.  On this indictment the appellant had originally been indicted with four co-defendants on counts of violent disorder and affray.  All the defendants pleaded not guilty to violent disorder, and this count was not pursued.  Two of his co-defendants, aged 20 and 16 on conviction, pleaded guilty to affray and were sentenced to perform 180 hours of community service.  Both of them had served custodial sentences between the commission of the offence and the date of sentence.  One co-defendant pleaded guilty to affray, and for personal reasons was unable to perform community service;  sentence upon him was deferred.  One co-defendant, aged 18, pleaded guilty, with the appellant, to using threatening, abusive or insulting words:  both he and the appellant were sentenced to 3 months’ detention in a young offender institution consecutive to the sentence of 9 months’ to which reference has already been made.  Thus the appellant, and also this co-defendant, who alone pleaded guilty to offences in both indictments, were sentenced to a total of 12 months’ detention.  

	The earlier incident in time occurred on 28 May 1997 at about 10 p.m. when Darren King was returning to his home by car with his 14 year old son.  As he drove into the road where he lived he noticed two youths fighting in the road and a group of at least 15 others in the area.  He sounded his horn to encourage the two youths to move out of the road and one of them turned and shouted abuse at him.  He drove slowly on, but as he did so heard a loud bang to his car.  He stopped and wound down the car window to see what had happened.  One of the youths swore at him and Mr King got out of the car.  The youth ran at him and, fearful for his safety, Mr King struck him once in the face.  The group of youths then surrounded him shouting “You’re going to die” and other threats.  Mr King got quickly back into his car and as he closed the door a youth struck the door with a baseball bat which he then handed to another youth, whom he told to hit Mr King.  The other youth swung the bat through the open window, but Mr King ducked and it missed him.  He drove off and the bat was thrown at the car.  The first youth kicked the car as it drove off.  Mr King drove to his home and called the police, and then went outside to see the group of youths approaching him.  Some ripped up wooden fencing.  A group of about 20 youths stood at the bottom of his drive, and when members of his family came out the group hurled pieces of wood and bricks at them.  A brick struck Mr King’s father on the leg, and a piece of wood struck his girlfriend.  When a police siren was heard the group quickly dispersed.  After the police had left, the group returned and shouted further abuse at the Kings’ house.  Members of Mr King’s family were able to name some of the youths, and identified others from identification parades.  Several days later the appellant was identified and in due course arrested.  

	The witness statements relating to this incident disclose an utterly disgraceful and inexcusable episode involving a large number of young men.  None of the witnesses, however, identified the appellant as taking part in any act of violence, whether directly or indirectly.  The case against him rested on his admission that he had been at the scene and had been shouting abuse.  This, no doubt, is why his plea to an offence under section 4 of the 1986 Act was accepted.  

	The second incident occurred on 22 June 1997 at about 10.30 p.m. when the victim, Christopher Brisbourne, went to a local shop to make a purchase.  While in the shop he noticed some youths knocking over a sweet stand.  He left and began to make his way home when the three youths from the shop approached him.  One of them asked him a question and another told him to go.  He walked on in the direction of his own home and as he did so the first youth punched him in the eye, causing him to fall to the ground.  The youth then kicked him repeatedly, but the victim succeeded in tripping him and stood up.  The youth then also got to his feet and grabbed the complainant by his jumper.  He in turn grabbed the youth’s jacket, and the other two youths shouted “If you hit him, we hit you”.  They then kicked and punched him.  The victim again fell to the ground where he curled up against the blows.  He was pushed on the chest.  Someone shouted and the youths ran off.  He sustained bruising and grazing to his left eye, a swollen jaw, bruising to his rib cage and cuts to his elbow.  A group of young girls witnessed the attack on the victim, which they described as totally unprovoked.  The girls were able to name all three youths, and identified the appellant as the youth who had punched the victim in the chest.  One of the appellant’s co-defendants was clearly identified as the main aggressor, and the appellant was not identified as having kicked the victim at any time.  When interviewed the appellant admitted that there had been an argument between his co-defendant and the victim, and admitted pushing the victim, but did not accept that he had struck him.  At the time of committing this offence the appellant was on bail for the earlier offence.

	At the date of sentence for these offences the appellant had one relatively minor conviction and two cautions, in each case for dishonesty.  A pre-sentence report described him as remorseful and ashamed.  It was plain that excessive drinking had contributed to his offending.  He had for some time been placed with the local authority, away from his family, and had been subject to curfew.  The last offence had been committed eleven months before.  

	On behalf of the appellant it was submitted that the use of abusive language by a 15 year old, however deplorable, was not an offence which merited custody.  With that submission we agree.  It was further submitted that the offence of causing actual bodily harm, although much more serious and committed on bail, did not merit a term of detention at all or, if it did, merited a term shorter than 9 months’, given the appellant’s youth, his plea of guilty and the relatively minor part played by the appellant in this assault.

	The judge was in our judgment right to conclude that this later offence, committed while on bail, was so serious as to call for a custodial sentence.  But the appellant was still very young.  He did plead guilty.  He was not the main aggressor and did no kicking.  He had never been sentenced to custody before.  We conclude that a very short term of detention would have been appropriate to punish the appellant, mark the unacceptability of his conduct and give him an opportunity to learn his lesson.

	For these reasons, we indicated at the conclusion of argument that we allowed the appeal, quashed the consecutive sentences of 9 months’ and 3 months’, and substituted no separate penalty for the section 4 offence and 4 months’ detention in a young offender institution for the section 47 offence.

R  v  SHANOOR:
	On 1  May 1998 in the Crown Court at Cardiff Mohammed Shanoor pleaded guilty to an indictment charging him with violent disorder contrary to section 2(1) of the Public Order Act 1986.  Three co-defendants who pleaded guilty to the same offence were sentenced to 9 months’ imprisonment or detention respectively.  The applicant (who is aged 21) was sentenced to 6 months’ imprisonment.  He applies for leave to appeal against that sentence.  

	The prosecution arose out of an incident of public disorder outside a night-club in Cardiff City Centre in the early hours of 29 October 1997.  There had been some trouble, not involving the applicant, inside the night-club.  When he came out there was a sizeable group of people there.  There was then, outside the club, an outbreak of violence which was recorded on closed circuit television.  It is plain that the violence was not instigated or initiated by the applicant, but he found himself in the middle of it and the recording showed him standing outside the club at a time when others began to throw punches and kick those around them.  The applicant was seen to punch one man, who had his back to him and who was behaving violently towards others.  There was then a brief struggle involving the applicant and this man, during which punches may have been exchanged.  After this, the applicant walked away and played no further part in the incident, although the violence continued for a period in his absence.  The applicant was shown the video recording of the incident, and admitted that he had punched the other man and had had no lawful excuse for doing so.

	The applicant had no previous convictions, although there was one caution for an offence against section 4 of the Public Order Act 1986 recorded against him in October 1996.  He was employed as the head chef of an Indian restaurant, and testimonials described him as a hard-working man who supported his parents and his siblings.  Referees spoke highly of him.

	A pre-sentence report described him as anxious, remorseful, ashamed and feeling foolish at having behaved as he had.  The risk of his re-offending was thought to be low, and community service was recommended.  There was clear evidence that his three co-defendants had been guilty not only of punching their opponents but also kicking victims while they were on the ground.  In passing sentence the judge said:

	“In this particular case, although it is not clear how it started, it certainly is clear from the security camera video how it finished, which in effect involved you [the applicant’s three co-defendants] not only punching people but kicking them while they were on the ground, and in your case Mohammed Shanoor you were involved in the fight and throwing punches.
	
	Conduct of this sort has a number of dimensions.  First of all there is the disturbance and disquiet that it causes to members of the public who witness it.  Secondly there is the risk of serious physical injury, because offences of violence don’t take very long to commit.  They can explode suddenly and sometimes result in very serious consequences.  In this particular case I do bear in mind that the incident was of comparatively short duration;  but those who were at the receiving end of what is seen on the security camera video did not make complaints to the police, from which I think it is reasonable to assume that they were themselves by no means blameless for what was going on.  I also bear in mind the submission that on the face of it I should approach this case on the basis that no serious physical injury was actually caused.  Nonetheless scenes of violence like this are disturbingly common, and public confidence demands that the court should be seen to take a firm hand where those responsible for violence in public streets are detected and brought before them”.

    With those observations we have much sympathy, and there is no reason to think that the sentence on the applicant’s three co-defendants, all of whom were seen to be kicking prone victims on the ground, were other than justified.
    
    Was the applicant’s offence, however, so serious that only a custodial penalty could be justified?  It was a spontaneous blow (or it may have been blows), struck with a fist.  The applicant used no weapon, and walked away from the violence.  He had not done anything to instigate the disorder.  He appears himself to have been caught up in the incident, from which he took an early opportunity to absent himself.  He pleaded guilty.  There was evidence of genuine regret.  He had a good record and was highly spoken of.  In all the circumstances we conclude that this offence was not so serious as to call for a custodial sentence, and we consider that the criminality of the applicant’s conduct could have been adequately punished and marked by an order that he perform community service.  
    
    	For these reasons we indicated at the conclusion of argument, that we granted leave to appeal, that we allowed the appeal, that we quashed the sentence of 6 months’ imprisonment and that we substituted (having regard to the period which the applicant had already served) an order that he be conditionally discharged for a period of 12 months’ from 14 July 1998.