Moore, R. v

For persistent and widespread railway graffiti, sentence must reflect the scale and cost of the damage, disruption and the need for deterrence. Repeated like offending, particularly soon after a suspended sentence, is a serious aggravating feature. The sentence must nevertheless be based on the damage properly attributable to the offender and on all relevant mitigation.

An anti-social behaviour order under section 1C(2)(a) of the Crime and Disorder Act 1998 requires proof to the criminal standard that the conduct caused, or was likely to cause, harassment, alarm or distress. Graffiti which is neither threatening nor abusive, supported only by general evidence that some graffiti may create an adverse environment, did not meet that threshold.

The appellant pleaded guilty at Blackfriars Crown Court to 25 counts of criminal damage arising from graffiti on railway property. The judge imposed concurrent terms of two years’ imprisonment, activated a two-month suspended sentence consecutively, and made a five-year anti-social behaviour order.

He appealed the custodial sentences as excessive and challenged the order. The central issues were the proper sentence for persistent railway graffiti, given the accepted value of the damage and the appellant’s previous offending, and whether the statutory threshold for an anti-social behaviour order had been proved.

1. Appeal allowed in part. The concurrent two-year sentences were quashed and replaced by concurrent sentences of 18 months’ imprisonment. The activation of the two-month suspended sentence, to run consecutively, remained in place. The total sentence was therefore 20 months, subject to credit for remand time.

2. The court accepted that the offending was less extensive, and the damage properly attributable to the appellant substantially lower, than in R v Pease [2008] EWCA Crim. 2515. It nevertheless treated the appellant’s repeated similar offending, including his resumption of it soon after a suspended sentence, as a serious aggravating feature. It supported a deterrent custodial sentence. The judge had considered the relevant factors, but his three-year starting point was too high and he had overstated the damage attributable to the appellant.

3. The anti-social behaviour order was quashed. Under section 1C(2)(a) of the Crime and Disorder Act 1998, the criminal standard applied to proof that conduct caused, or was likely to cause, harassment, alarm or distress. The appellant’s tags were not threatening or abusive. The evidence that they were unsightly and unwelcoming, coupled with general observations about offensive graffiti, did not prove the statutory threshold. It was therefore unnecessary to decide whether the order’s terms were disproportionate or too wide.

• Court of Appeal (Criminal Division). The appeal against sentence and the anti-social behaviour order was allowed in part in [2011] EWCA Crim 1100.

• Crown Court at Blackfriars. On 18 November 2010, the appellant received concurrent two-year sentences for 25 offences of criminal damage; a two-month suspended sentence was activated consecutively; and an anti-social behaviour order was made.