McGhie, R. v

Where immediate custody for repeated breaches of an anti-social behaviour order has failed and current professional evidence supports treatment, a substantial immediate custodial sentence may be manifestly excessive and wrong in principle. A suspended sentence combining supervision with the recommended treatment programme may better protect the public and address the offending behaviour.

A court has no jurisdiction under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to order service of an unexpired part of an earlier sentence where both offences were committed after 4 April 2005. Any such return-to-custody order must be quashed.

The appellant pleaded guilty at West Dorset Magistrates’ Court to two breaches of an anti-social behaviour order and was committed to the Crown Court at Dorchester for sentence. The Recorder imposed two concurrent sentences of two years’ imprisonment and ordered him, under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, to serve 250 days of an unexpired earlier sentence before the new sentences.

The breaches involved following a 15-year-old girl on two occasions while displaying a banknote, conduct which caused her considerable distress. The appellant appealed against sentence, contending that the total sentence was excessive and that the section 116 order was unlawful. Following an adjournment, the Court of Appeal obtained psychiatric evidence recommending treatment and considered the lawfulness of the return-to-custody order.

1. Appeal allowed. The two-year concurrent custodial sentences for the breaches were manifestly excessive and wrong in principle. Although the conduct was persistent, distressing and in flagrant breach of an order intended to protect teenage girls, previous immediate custody had failed to address the appellant’s compulsive behaviour.

2. The current psychiatric evidence, consistent with the pre-sentence report, showed that the appellant had not received the recommended treatment. Protection of the public was properly relevant, but it did not require a further immediate sentence in circumstances where supervision and targeted treatment were available.

3. The court substituted a sentence of nine months’ imprisonment suspended for two years. It imposed a two-year supervision requirement and a requirement to attend the Thames Valley Sex Offender Groupwork Programme.

4. The return-to-custody order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 was unlawful. Applying R v Gordon [2007] EWCA Crim 165, the court had no jurisdiction to require service of any part of the unexpired earlier sentence where both offences had been committed after 4 April 2005. That part of the order was quashed.

5. Leave was granted to add a ground challenging the first prohibition in the anti-social behaviour order. On the appellant’s undertaking to file the necessary application, the court deleted the prohibition on allowing any banknote in his possession to be visible in a public place; the remaining prohibitions stood.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, substituted a suspended sentence with supervision and treatment requirements, quashed the section 116 return-to-custody order, and deleted one prohibition in the anti-social behaviour order.

• Crown Court at Dorchester: On 6 October 2006, imposed concurrent sentences of two years’ imprisonment for two breaches of the anti-social behaviour order and ordered 250 days’ return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

• West Dorset Magistrates’ Court: On 13 September 2006, the appellant pleaded guilty and was committed to the Crown Court for sentence.