Caiger, R. v

When sentencing a breach of an anti-social behaviour order alongside associated offending, the court may assess the totality of the criminality. The sentence is not confined to the maximum penalty for a different substantive offence which the conduct might also have constituted, including an offence under Public Order Act section 5.

That assessment must nevertheless take account of all material mitigation. In particular, the circumstances in which the offender came to be at the place covered by the order, and genuine efforts to avoid being taken there, may substantially affect sentence. An appellate court may reduce an overall custodial term that is manifestly excessive after allowing proper credit for guilty pleas.

The appellant, who had a serious alcohol problem and relevant previous convictions, was subject to an anti-social behaviour order prohibiting conduct causing harassment, alarm or distress within Weston General Hospital and its grounds.

After release from custody, he became drunk and abusive, assaulted a paramedic and a police officer, and was taken under arrest to the hospital for treatment of a head injury. Although he had sought not to be taken to that hospital, he behaved abusively there and thereby breached the order.

At Bristol Crown Court, Judge Hagen imposed concurrent sentences of six months for common assault, six months for assaulting a constable, and three years for breach of the order. The appellant appealed against sentence with leave. The central issue was whether the three-year total sentence was manifestly excessive.

1. Appeal allowed against sentence. The Court held that the total sentence of three years' imprisonment was manifestly excessive. It substituted a total sentence of 18 months' imprisonment.

2. The sentencing judge was entitled to treat custody as the only realistic disposal. The appellant's entrenched alcoholism and repeated offending meant that no realistic non-custodial sentence was available. The court also upheld the judge's view that hospital staff and other public-service workers were entitled to perform their duties without assault or abuse.

3. In fixing sentence for breach of the anti-social behaviour order, the judge was not confined by the maximum penalty for the separate substantive public-order offence under Public Order Act section 5. The proper approach was to assess the totality of the criminality arising from the incident.

4. However, the sentencing assessment had to give proper weight to the exceptional context. The appellant had nowhere to go on release and, despite his intoxication, had made genuine efforts not to be taken to the particular hospital covered by the order. The police had properly taken him there because he required treatment, and his subsequent misconduct was inexcusable; but the mitigating circumstance had not been sufficiently developed below.

5. Allowing full credit for the guilty pleas, the appropriate sentences were 18 months for breach of the order and four months on each assault count, all concurrent. The total term was therefore 18 months' imprisonment.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 3114, allowed the appeal against sentence and substituted concurrent sentences producing a total term of 18 months' imprisonment.
• Crown Court at Bristol: Judge Hagen sentenced the appellant to concurrent terms of six months for common assault, six months for assaulting a constable, and three years for breach of an anti-social behaviour order.