Belli, R. v

A Drug Treatment and Testing Order (DTTO) must receive proper consideration where drug addiction has materially contributed to acquisitive offending. It should not be rejected solely because custody would otherwise be justified or because the offending is extensive. The seriousness and actual criminality of the offending nevertheless remain material to the sentencing balance.

On a sentence appeal, reliable post-sentence evidence of abstinence, motivation and capacity to comply may justify a fresh assessment and substitution of a DTTO for imprisonment where the balance decisively favours treatment and rehabilitation.

The appellant pleaded guilty to theft, burglary, shoplifting and failing to surrender to bail. The offences were committed during entrenched drug misuse. Reports before the Crown Court assessed him as suitable and sufficiently motivated for a twelve-month Drug Treatment and Testing Order (DTTO), but the judge imposed concurrent and consecutive custodial sentences totalling two years and nine months.

On appeal, further probation material recorded progress in prison, determination to stop using drugs, and negative mandatory and voluntary drug tests. The central issue was whether the custodial sentences should be quashed and replaced by a DTTO.

1. Appeal allowed. The court quashed the total sentence of two years and nine months’ imprisonment and substituted a Drug Treatment and Testing Order.
2. The provisions for DTTOs in sections 52 to 57 of the Powers of Criminal Courts (Sentencing) Act 2000 form an important sentencing option for offending driven by drug addiction. A DTTO is not a lenient disposal. It entails regular testing, court reviews and the possibility of revocation and a custodial sentence.
3. The court endorsed the guidance in Kelly [2002] EWCA Crim 2060 and Robinson [2002] EWCA Crim 535. A sentencer must properly consider a DTTO and must not exclude it simply because custody would otherwise be appropriate or because the addiction-driven offending is extensive. Conversely, the offender’s actual criminality and the seriousness of the offences remain material, as illustrated by Attorney General’s Reference No 28 of 2001 (Daniel McCollins) [2001] EWCA Crim 1373.
4. The sentencing judge faced a genuine balancing exercise. The burglary had aggravating features, but it was not among the worst of its kind and the premises were unoccupied. The court had doubts whether the judge had approached the discretion consistently with the guidance in Robinson, but did not finally decide that question.
5. Whatever the original sentence’s justification, the additional evidence before the Court of Appeal decisively shifted the balance towards a DTTO. The appellant’s prison progress, negative tests and stated commitment to break free from drugs justified substituting that rehabilitative and supervisory disposal.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2003] EWCA Crim 2752, quashed the custodial sentences and substituted a Drug Treatment and Testing Order.
• Chester Crown Court: Following committal for sentence from the magistrates’ court, imposed a total of two years and nine months’ imprisonment and rejected a proposed Drug Treatment and Testing Order.