Braxton, R v

Sentencing for deliberate and repeated breach of an antisocial behaviour order must reflect Parliament’s public-protection response to persistent conduct which causes distress and disquiet in public places. Conduct an offender regards as trivial may properly attract a serious sentence where its persistence and effect on the public make it menacing. The sentencing court may take account of prior breaches, reoffending shortly after release on licence, and the need to protect the public when fixing the total term.

A challenge to a magistrates’ conviction cannot be pursued through an appeal against sentence in the Court of Appeal (Criminal Division).

The applicant had been convicted by Birmingham City Magistrates of two breaches of an antisocial behaviour order and of assaulting a constable. He was committed to the Crown Court at Birmingham for sentence.

On 24 October 2003, Judge McCreath imposed concurrent terms of three and a half years’ imprisonment for the breaches and a consecutive three-month term for the assault. The applicant renewed, after refusal by the single judge, his application for leave to appeal against sentence. He also sought to challenge matters relating to his summary trial and conviction before the magistrates.

The central issues were whether the total sentence was proper for repeated breaches shortly after release from custody, and whether the Court of Appeal could entertain complaints directed to the magistrates’ convictions.

1. The renewed application for leave to appeal against sentence was refused. The total sentence of three years and nine months was within the sentencing judge’s entitlement.
2. An antisocial behaviour order is a serious restriction on liberty, and breach is a serious criminal offence. The court stressed that the order is Parliament’s response to the public impact of persistent antisocial behaviour. Sentences for breach must therefore reflect the need to protect the public from repeated and distressing misconduct.
3. The judge had properly assessed the totality and gravity of the offending. The applicant had previously breached the same order, had received a substantial sentence for those breaches, and committed two further deliberate breaches within weeks of release on licence. His conduct in approaching and obstructing members of the public while aggressively seeking money, and his later assault on a constable, justified treating the offending seriously. The applicant’s assertion that the conduct was trivial did not answer its persistence or its effect on the public.
4. The complaints concerning the waiver of summary trial and the validity of the magistrates’ convictions could not be advanced in this court on an appeal against sentence. Any challenge lay by the appropriate route in the Crown Court or, in some circumstances, by judicial review; on the facts described, those routes were out of time and appeared devoid of merit.
5. The court directed that a transcript be sent to the applicant so that he could understand the consequences of further breaches and the need to address his conduct in public.

• Court of Appeal (Criminal Division): The applicant’s renewed application for leave to appeal against sentence was refused: [2004] EWCA Crim 1374.
• Crown Court at Birmingham: On 24 October 2003, Judge McCreath imposed concurrent sentences of three and a half years for two breaches of the antisocial behaviour order and a consecutive three-month sentence for assaulting a constable.
• Birmingham City Magistrates: The applicant was convicted on 15 August 2003 of the two breaches and the assault, and was committed to the Crown Court for sentence.