Attorney General Reference No 64 Of 2003

A Drug Treatment and Testing Order requires more than statutory eligibility. The court must make a non-exhaustive public-interest assessment, including the realistic prospect of rehabilitation, clear determination to become drug-free, the offender’s criminal history, the nature and volume of offending, and proportionality.

Drug addiction and an acquisitive motive do not compel a DTTO. It will rarely be appropriate for serious violence or threats of violence with a lethal weapon. Rehabilitation must not be given excessive weight at the expense of a proportionate sentence for serious criminality.

Fresh evidence available on appeal may materially alter the appropriate community sentence. Before imposing a community rehabilitation order, the court must explain its nature, effect and consequences to the offender.

The court dealt with two unrelated sentencing matters concerning the proper use of a Drug Treatment and Testing Order (DTTO).

• The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer Moussin Boujettif’s two-year DTTO as unduly lenient. Boujettif had pleaded guilty to aggravated burglary and burglaries, admitted numerous further domestic burglaries, and had committed the offences while on licence.
• John Harrison appealed concurrent sentences of four years’ imprisonment for burglary and six months’ imprisonment for assault occasioning actual bodily harm. Although he had been assessed as suitable for a DTTO at sentence, an updated report showed substantial progress in custody and recommended a community rehabilitation order instead.

The central issue was when a DTTO serves the public interest and how later information should affect sentence on reference or appeal.

1. The court granted the Attorney General leave to refer Boujettif’s sentence and granted Harrison leave to appeal. It identified a non-exhaustive set of DTTO factors after the review in R v Belli [2003] EWCA Crim 2752. A DTTO requires a realistic prospect of reducing addiction and clear evidence that the offender is determined to become drug-free. The court must also assess the seriousness and type of offending, its connection with drugs, the offender’s history, motivation and susceptibility to treatment, and proportionality.

2. A drug-related acquisitive motive does not itself justify a DTTO. Such an order will rarely be suitable for serious violence or threats of violence with a lethal weapon. A high volume of offending does not automatically preclude it, but a substantial number of serious offences, minor violence, or particularly damaging effects on victims may do so. Rehabilitation cannot be allowed to outweigh a proportionate response to the offender’s criminality.

3. Boujettif’s DTTO was plainly inappropriate. His repeated night-time incursions into occupied homes, threats with a knife, vulnerable victims, further planned domestic burglaries, extensive additional offending, offending while on licence, and antecedents required a substantial custodial sentence. The reference was allowed. Allowing for double jeopardy, partial compliance with the DTTO and personal mitigation, the court substituted four years’ imprisonment, concurrent on all offences and commencing on surrender or arrest.

4. Harrison’s appeal was allowed. The sentencing judge had not been wrong to reject a DTTO on the information then available. However, the current assessment showed committed progress in custody, reduced risk, and a need for support which a DTTO would not appropriately provide. The court quashed the custodial terms and substituted a two-year community rehabilitation order, with requirements to attend the Think First programme and reside where approved by the supervising officer.

5. A community rehabilitation order could be made only after the court had itself explained its nature, effect and consequences to Harrison, in person or by video link. The court then gave that explanation and formally allowed the appeal.

• Court of Appeal (Criminal Division): In [2003] EWCA Crim 3514 , the court allowed the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, substituted four years’ imprisonment for Boujettif’s DTTO, and allowed Harrison’s sentence appeal.
• Blackfriars Crown Court: On 22 September 2003, Judge Martineau imposed a two-year DTTO on Boujettif for aggravated burglary, burglary and associated matters.
• Bolton Crown Court: Judge Kushner QC imposed four years’ imprisonment for Harrison’s burglary and six months’ imprisonment concurrently for assault occasioning actual bodily harm.