Rush, R. v

A criminal Anti-Social Behaviour Order requires a demonstrable necessity to protect the public from further anti-social acts. It is not a routine component of sentencing. A custodial sentence and post-release licence do not, without more, establish the need for an additional order.

Persistent intimidation and harassment of identified victims can justify a focused order extending beyond release. Its duration must nevertheless be carefully justified, particularly because breach may criminalise conduct that would otherwise be lawful. The custodial sentence must also remain proportionate to the particular burglary, notwithstanding a serious background of offending.

The appellant pleaded guilty at Newcastle upon Tyne Crown Court to burglary after entering his parents’ home, where he was unwelcome, and taking a packet of cigarettes. The offence occurred against a background of repeated offending, harassment and disturbances directed at his parents.

The sentencing judge imposed 30 months’ imprisonment, consecutive to an existing sentence, and made an Anti-Social Behaviour Order for ten years after release. The appellant appealed against sentence with leave of the single judge. The issues were whether the custodial term was excessive and whether the order, including its duration, was justified.

1. Appeal allowed in part. The 30-month custodial sentence was quashed and replaced by 12 months’ imprisonment. Although custody was inevitable, the burglary itself was at the lowest end of the scale. The judge had given excessive weight to the background of offending when fixing the sentence for that particular activity.
2. A criminal Anti-Social Behaviour Order requires demonstrable necessity to protect the public from further anti-social acts. The court applied the approach in R v Shane Tony P [2004] 2 Cr App R(S) 63. Such an order should not be treated as a normal part of sentencing, especially where the offence does not itself involve intimidation or harassment. The fact that an offender will be subject to licence and recall after a substantial custodial sentence does not ordinarily show that an additional order is necessary.
3. On the facts, however, an order was justified in principle. The appellant had persistently intimidated and harassed his parents, and the order was confined to protecting those identified victims. They were entitled to protection beyond his release from custody.
4. The ten-year duration was excessive. The court had to consider carefully the length of an order because its breach may criminalise conduct which would not otherwise be an offence. No particular reasons had been given for fixing ten years. The order was therefore varied to run for five years. Under section 1C(6) of the Crime and Disorder Act 1998, the appellant could apply to the Crown Court for variation or discharge if the improving family relationship persisted after custody.

• Court of Appeal (Criminal Division): Allowed the appeal in part. It substituted 12 months’ imprisonment for 30 months and reduced the Anti-Social Behaviour Order from ten years to five years.
• Crown Court at Newcastle upon Tyne: Following a guilty plea to burglary, imposed 30 months’ imprisonment and an Anti-Social Behaviour Order for ten years from release.