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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Moore, R. v [2011] EWCA Crim 1100 (06 April 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1100.html Cite as: [2011] EWCA Crim 1100, [2012] 1 Cr App R (S) 5

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6th April 2011

LORD JUSTICE RICHARDS:

1. This is an appeal against sentence brought with leave of the full court. The appellant, a young man who is 24, pleaded guilty in the Crown Court at Blackfriars to 25 counts of destroying or damaging property. On 18 November 2010 he was sentenced by His Honour Judge Clarke QC to 2 years' imprisonment concurrent on each count. A suspended sentence of 2 months' imprisonment imposed by the Magistrates' Court on 10 August 2009 for a previous offence of criminal damage was also activated and ordered to take effect consecutively, making a total sentence of 26 months. The judge directed that a period of 111 days spent in custody on remand should count towards sentence. In addition, on the application of the Crown the judge made an Anti-social Behaviour Order in terms to which we shall come in due course. The appeal is against the length of the sentence for the 25 counts of criminal damage and against the making of, and the terms of, the Anti-social Behaviour Order .
2. The offences related to the painting of graffiti on railway property. There had been an extensive police investigation after it was noted that a particular tag, "10-foot", was being left in various places. It was suspected that the appellant was responsible. His hallmark wag to trespass on railway property and leave his tag on various structures. He had four previous convictions for such criminal damage between September 2007 and August 2009. On searches of his home and girlfriend's home between November 2009 and February 2010 the police found various relevant books and equipment. But it was not until the appellant was arrested on 7 June 2010 after he had been seen on Hungerford Bridge in London, and graffiti including his tags were discovered on the bridge, that the fruits of the police investigation could be laid at his door.
3. Count 1 dealt with an area extending from Potters Bar down to King's Cross and covered a large number of examples of the appellant's tagging on railway sidings, embankments and bridges over a period in excess of two years. The other counts dealt with more tightly defined areas or specific incidents. For example, count 5 related to spraying a train at Plumstead sidings. The train had been covered and the "10-foot" tag appeared in continued fashion across one of the carriages, though it was apparent that another person had been at work on the same train.
4. There was a large bundle of prosecution photographs relating to the various counts. The appellant accepted that certain of the images in the photographs specifically identified in a schedule were his work. He pleaded guilty on that basis and no Newton hearing was ordered.
5. There was evidence for the Crown that the total cost of removing the graffiti covered by the various counts was in excess of £113,000, of which it was estimated that at least £40,000 was the responsibility of the appellant. In the schedule to which we have referred, however, the appellant accepted responsibility for damage limited to just under £27,000.
6. Offending of this kind was considered by the Court of Appeal, presided over by the Lord Chief Justice, in R v Pease [2008] EWCA Crim 2515 , in which the earlier cases of the R v Verdi [2005] 1 Cr.App.R.(S) 197 and R v Dolan and Whittaker [2008] 2 Cr.App.R.(S) 67 were also considered.
7. The offence in Pease was one of conspiracy to cause criminal damage. It was a serious and wide scale conspiracy. The court emphasised the seriousness of the offending, the cost of remedying it and, where trains had to be taken out of service, the inconvenience caused. The conspiracy was described as well-organised and one of its consequences was said to be significant damage on a vast scale. A figure of hundreds of thousands of pounds was mentioned and the Crown's case was that the true figure for damage caused was likely to run into millions of pounds. All the appellants in that case were men of previous good character. The court upheld sentences ranging between 15 months' imprisonment to 24 months' imprisonment, in each case on a very late plea of guilty. The court said that the sentences were fully justified and for damage on that scale custodial sentences of that length were appropriate, not least because of the need for a deterrent element.
8. In the present case the judge referred to the guidance in Pease and plainly had it at the forefront of his mind. He said that the appellant would be sentenced on the basis that the amount of repair work was between £40,000 and £100,000. Pease dealt with a figure of hundreds of thousands of pounds, but that did not distinguish the present case because, as the judge put it, what the appellant did amounted to a one-man rash of graffiti attacks on property over a wide area. It was something that the appellant was plainly proud of; he sought notoriety in the sub-culture of graffiti artists.
9. The judge referred to a letter written by the appellant, and to the pre-sentence report, both of which we have also considered. In addition, we have considered a further letter written by the appellant to this court.
10. The judge took the view that the consequences and danger to train drivers of having the appellant free on the railway line looking for sites to tag were immense. He thought it idle to go through the counts individually, ranging as they did from a few characters to extensive graffiti; he dealt with it on the basis of totality.
11. He took into account the fact that the appellant was not in the best of health, suffering from an extreme form of diabetes which left him especially vulnerable in custody. He bore in mind the pleas of guilty, while observing that the nature of the tagging meant that distinctive signatures were left.
12. He considered that what made the case stand out from most others was that the appellant had previously appeared in court on a number of occasions and in particular had received a suspended sentence in 2009, yet within a few months of that suspended sentence the appellant was at it again. The judge said that he had to consider the sheer criminality of somebody who had taken a pride in a multitude of images put where they could be seen and recognised as the appellant's tag.
13. Having dealt with the Anti-social Behaviour Order , to which we shall return, the judge said that custody was inevitable. He had taken a starting point of 3 years and reduced it to 2 years for the appellant's pleas, his letter and his medical condition.
14. In commendably succinct and well-focused submissions on behalf of the appellant, Miss Hamid contends that the sentence of 2 years was simply too long in the circumstances. She says that the judge failed to take into account or to reflect the guilty pleas at the first opportunity and the fact that the damage here was to buildings rather than rolling stock, and she submits that the value of the damage was not enough to justify a sentence of this length. She made a detailed comparison of this case with the facts of Pease , submitting that that comparison supported the contention that the sentence in this case was too long. She submitted also that the judge failed to take into consideration the appellant's health problems and the damage that would be caused to his health by time in custody.
15. For the Crown, Mr King has submitted in effect that the sentences in this case were within the range properly open to the judge. He said that the value of the damage is not the only indication of seriousness and, whilst the value of damage in this case was smaller than that in Pease , it was still substantial. Whilst damage to rolling stock may be more serious than damage to sidings and buildings, damage to the latter also causes disruption to the railway system. He points out that the judge was plainly mindful of the appellant's poor health, to which he made express reference in his sentencing remarks, and he submits that on a comparison with Pease the sentences here can be seen not to have been excessive.
16. We have given careful consideration to the rival submissions. We accept that the overall scale of offending here is less than in Pease and that the value of the damage on the figure accepted by the appellant, which must in the circumstances be taken as the basis for sentencing, is substantially lower than that in Pease . On the other hand, an important difference going the other way is that the offenders in Pease were all of good character, whereas this appellant had several previous convictions for the same kind of offending, and in particular, as the judge pointed out, was made subject to a suspended sentence in August 2009, yet carried on with the very same kind of offending very soon afterwards. His determination to carry on offending notwithstanding his appearances in court constitute a serious aggravating feature and serve to underline the need for a deterrent sentence, as mentioned by the court in Pease .
17. We are satisfied that the judge took all relevant considerations into account in reaching his decision on sentence, save that he appears to have stated too high a value for the amount of damage properly attributed to this appellant.
18. Looking at the matter overall, however, we have come to the conclusion that the sentence was, as submitted by Miss Hamid, higher than could be justified. In particular, a starting point of 3 years was somewhat too high. We take the view that the appropriate sentence, based on a starting point closer to 2 years than to 3 years, would have been one of 18 months' imprisonment on each of the counts to which the appellant pleaded guilty. In addition there is the two month suspended sentence, which the judge was right to activate and to make consecutive.
19. We will therefore allow the appeal in relation to the custodial element of the sentence to the extent of quashing the sentences of 2 years' imprisonment and substituting sentences of 18 months on each of the counts in question, leaving in place the judge's order as to the activation of the two month suspended sentence to be served consecutively. That makes a total of 20 months to be served, with time on remand to count towards sentence.
20. We turn now to the Anti-social Behaviour Order . That was in these terms. It prohibited the appellant from (1) carrying these articles in any public place, namely any form of unset paint in any form of container, any form or permanent marker pen, any form of shoe dye or permanent ink in any form of container, any form of grinding stone, glass cutting equipment, glass etching solution or paste throughout England and Wales; (2) entering any depot, siding or any other part of any railway operator's property, or any part of any bridge which is not expressly open to the public, whether on payment or otherwise; throughout England and Wales for five years.
21. The appeal against that order is on two bases: first, that there was no evidence upon which the court could be sure that the appellant "acted in a manner that caused or was likely to cause harassment, alarm or distress to another" as required by section 1C(2)(a) of the Crime and Disorder Act 1998 ; and second, that the terms of the order are disproportionate and constitute an unnecessary interference with the appellant's day to day life.
22. As to the first point, whether the threshold condition for making an order was satisfied, the criminal standard of proof applies (see R(McCann) v the Crown Court at Manchester [2003] 1 Appeal Cases 787 ). None of the appellant's graffiti was threatening or abusive in nature; the graffiti were confined to the tag name, the image of a foot or the alternative name "Jim". A witness statement of Mr O'Brien of Network Rail, put forward in support of the application for an order, described the graffiti as "unsightly and unwelcoming" and as having a negative impact, and also said that it is Network Rail's policy to remove graffiti that are "offensive, racist or homophobic" because they create "an image of an environment where crime is rife and accepted" and "can also make passengers feel like they are in a foreboding environment."
23. The submissions advanced on the appellant's behalf is that his graffiti contained no offensive or threatening material; that the matters referred to in the witness statement of Mr O'Brien provide no basis for the making of an order; the conditions for making an order were simply not shown to be met. In the case of R v Dolan and Whittaker , to which we have already referred, an Anti-social Behaviour Order was quashed for this very reason, that on the evidence before the court the conditions for making such an order were not met. It is submitted that the same should apply in this case.
24. Mr King has made various points in support of the Anti-social Behaviour Order . None of them, however, seem to us to meet the essential thrust of the submissions on behalf of the appellant.
25. We are satisfied that the submissions made by Miss Hamid are well-founded and that an Anti-social Behaviour Order should not have been made in this case because the threshold conditions were not fulfilled.
26. In those circumstances, we will allow the appeal against the Anti-social Behaviour Order by quashing that order. It is unnecessary for us to consider the alternative submission that the terms of the order were in any event too wide.
27. For those reasons and to that extent this appeal is allowed.