Austin & Ors, R v

Deliberate and organised graffiti vandalism of railway carriages, particularly on a substantial scale, passes the custody threshold. Custodial sentences must include a significant deterrent element because of the financial loss, disruption to rail services and blight caused to the travelling public.

Even where the custody threshold is passed, the court must consider whether a non-custodial sentence remains appropriate. It must then assess whether the term imposed is manifestly excessive by reference to the offender’s role, relevant antecedents and personal mitigation. An unattractive record for different offending must not disproportionately inflate sentence.

Four young men appealed against custodial sentences imposed at the Crown Court at Southwark on 10 October 2008 after guilty pleas to a conspiracy to damage railway carriages with graffiti and to related substantive offences. One appellant also admitted possessing cannabis with intent to supply.

The offending involved planned attacks on trains at several locations, substantial cleaning and repair costs, and disruption to railway services. The appellants relied on their guilty pleas, personal progress after arrest, curfews and, in some cases, limited relevant previous convictions. The central issues were whether custody was necessary, whether the sentences were manifestly excessive, and whether there was unjustified disparity.

1. The appeals of Austin, Setzdempsey and Piehl were dismissed. Collister’s appeal was allowed. His sentence of 30 months’ imprisonment was quashed and replaced with 20 months’ imprisonment.

2. Large-scale and organised graffiti damage to railway carriages crossed the custody threshold. The court agreed with the sentencing judge that such conduct damages the environment, burdens train operators and disrupts the travelling public. Sentences for it require a deterrent element.

3. The court treated R v Verdi [2005] 1 Cr App R(S) 42 and R v Dolan and Whittaker [2008] 2 Cr App R(S) 11 as limited assistance because neither was a guideline decision, but accepted their common conclusion that graffiti offending on this scale passes the custody threshold. It also considered R v Pease and Others [2008] EWCA Crim 2515, which confirmed that deterrent custodial sentences are appropriate for vandalism on that scale.

4. Passing the custody threshold did not end the sentencing exercise. The court had to consider whether a non-custodial sentence could nevertheless be imposed and, if not, whether the custodial term was manifestly excessive when deterrence, culpability, aggravation and mitigation were weighed.

5. Austin’s previous graffiti convictions and offending in breach of an Anti-Social Behaviour Order justified distinguishing him from the younger appellants with less relevant history. Setzdempsey’s and Piehl’s terms were within the proper sentencing bracket. Collister’s starting point was excessive: his record for other kinds of offending should not have been allowed undue influence. A 30-month starting point, reduced for the guilty pleas, produced a term of 20 months.

• Court of Appeal (Criminal Division) — Austin’s, Setzdempsey’s and Piehl’s sentence appeals were dismissed. Collister’s appeal was allowed and his sentence was reduced from 30 months to 20 months’ imprisonment.
• Crown Court at Southwark — on 10 October 2008 imposed custodial sentences following guilty pleas to conspiracy and substantive offences of criminal damage by graffiti, and, for Setzdempsey, possession of cannabis with intent to supply.