Unauthorised use of trade marks [October 2008] Unauthorised use of trade marks [October 2008]
Animal cruelty [August 2008]
Racially aggravated criminal damage [July 2008]
Offences: driving without due care and attention, driving whilst using a mobile phone [May 2008]
Common assault, witness intimidation [April 2008]
Possession of a bladed instrument [March 2008]
Theft of electrical items, value £40 [February 2008]
Theft of goods, value £1200 [January 2008]
S4 threatening behaviour [November 2007]
Driving whilst disqualified and excess alcohol [October 2007]
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Feltham bench?
| SCENARIO |
FACTS
Complaints were received that sellers of counterfeit DVD films (all of Chinese origin) were operating in a local supermarket car park. Federation Against Copyright Theft (FACT) investigators carried out observations over several weeks, culminating in a police operation with input from FACT and local trading standards officers. This resulted in the arrest of two traders, and the recovery of 3,000 counterfeit DVDs. These included major recent releases from a wide number of film studios and were being sold at slightly less than normal shop prices. Both traders gave ‘no comment’ interviews to the police. They were then charged under s92 (1) (b) of the Trade Marks Act 1994.
The prosecutor reminds the court: ‘A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor, sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear or the packaging of which bears such a sign’, and points out that all the major film companies (who are FACT members) have their names and logos registered as trade marks. She also informs the court that the police found very substantial sums of cash in the defendants’ homes, and that Her Majesty’s Immigration Service have identified them as Chinese nationals and as being in the UK illegally. Both pleaded guilty at the first opportunity and have no previous convictions.
DEFENCE MITIGATION
A solicitor for the two defendants says to the court that both had become involved in the counterfeiting operation because of threats applied to them by criminal gangs in China, who supplied the DVDs, and that they were afraid for the safety of their families. He asks that the court give credit for the early guilty pleas.
| THE SENTENCE |
Offence: |
Unauthorised use of trade marks |
| Penalty starting point: | 12 weeks custody |
| Range: | 6 weeks custody – Crown Court |
| Offence aggravating factors: | Very high level of profit |
| Offence mitigating factors: | None |
| Preliminary view: | Very serious, from starting point move to Crown Court |
| Offender aggravating factors: | Illegal status Uncooperative in police interview |
| Offender mitigating factors: | Defence argument that threats applied to defendants but unsubstantiated Early guilty plea No previous convictions |
OUR SENTENCE
We took into account the contents of a pre-sentence report and the offender mitigation. We also gave credit for the early guilty plea.
Taking all those factors into account we decided to reduce sentence from a committal to the Crown Court for sentence and imposed a six months’ custodial sentence on each defendant.
We believed that the offences were so serious that only a custodial sentence was appropriate. The number of counterfeits recovered plus the fact that they were very recent releases, and the recovery of substantial amounts of cash (we presumed this would have been detailed) and damage to legitimate traders were key factors in our decision. We would also make an order for forfeiture and destruction of the DVDs. We hope that the police would deal with recovered cash as proceeds of crime.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Isle of Wight bench?
| SCENARIO |
FACTS
Following a phone call from a concerned neighbour, an RSPCA inspector calls at the home of Pauline James. What he sees when she answers the door causes him to call the local police, who attend. The house is in a dreadful condition; rubbish of all kinds, including many empty cider bottles, is piled up on every surface and dog excrement is over all the floors. The RSPCA inspector examines Ms James’s Labrador dog and finds a large tumour on one of its back legs. He takes the dog away for veterinary treatment. Ms James is subsequently prosecuted under s4 Animal Welfare Act 2006 for causing unnecessary suffering. She pleaded guilty at the first hearing, at which the court heard the vet’s report which stated the Labrador must have been visibly suffering from the tumour for some months, causing severe discomfort at the very least. The dog also had severe dental problems and was somewhat underweight. The dog had recovered well from surgery and care, however, and was fit to be placed with another owner.
Ms James had no previous convictions of any kind. The prosecutor requested the court to exercise its power to disqualify Ms James from owning an animal. The court adjourned for a full report and indicated that custody was not ruled out. At the sentencing hearing, the probation report suggests the court consider a community order with appropriate requirements to help Ms James address her drinking problem.
DEFENCE MITIGATION
A solicitor appearing for Ms James says that she lives alone, has a severe drink problem and that her life is completely chaotic. She lives on benefits, having recently lost her job as a shop assistant because of her inability to get to work on time. She had ‘let the house go’ since then, spending nearly all her time in her bedroom drinking. Her dog is her only source of companionship; she did feed the dog and indeed is very fond of it. She didn’t think the dog was suffering as it had seemed ‘all right’ most of the time, although she accepts that she had noticed the tumour some months ago, but had not sought treatment for it because of the likely cost.
The solicitor asks that credit be given for her guilty plea and asks the court to bear in mind that the dog has recovered well.
| THE SENTENCE |
Offence: |
Animal cruelty |
| Penalty starting point: | High level community order |
| Range: | Medium level community order to 12 weeks’ custody |
| Offence aggravating factors: | Period of time animal suffered Defendant responsible for animal Living conditions |
| Offence mitigating factors: | Ignorance of appropriate care Offender with limited capacity |
| Offender aggravating factors: | Under influence of alcohol |
| Offender mitigating factors: | Early guilty plea |
Although custody was an option, having considered all the facts available to us we took into account her early guilty plea and the following other factors. We felt there was a limited capacity because of her alcohol consumption, which also accounted for her disorganised lifestyle and we did not consider that this was an intentional act on her behalf.
OUR SENTENCE
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Gloucestershire bench?
| SCENARIO |
The CCTV control room calls the police to attend an incident at a corner shop in the early hours of the morning. A man has been seen spray-painting the shop window. The police have a patrol car nearby which arrives five minutes or so later and the officers see a man walking away from the shop. When he sees the patrol car he runs away, but is detained after a brief chase. He is found to have a can of spray paint in his coat pocket and is arrested. At the station he gives his name as Peter Johnson but makes no comment during his formal interview. He is subsequently charged.
The shop had recently been opened by a Mr Rakowski and the door and window are found to be defaced with slogans insulting Polish immigrants and including the phrase ‘Poles go home or we’ll be back’. Photographs are taken at the scene before clean-up starts. The paint used appears to be a match for that in the can found on Mr Johnson and traces of paint were also on the clothing he was wearing when detained.
Mr Johnson pleads guilty at the first hearing. The prosecutor outlines the facts of the offence and introduces the record which shows a previous criminal damage offence two years ago, for which Mr Johnson had been fined £75 and ordered to pay £100 compensation. There are no other convictions. The costs of cleaning the shop window and door are put at ‘around £500’ and costs are requested in the sum of £100.
DEFENCE MITIGATION
A solicitor appearing for Mr Johnson says that Mr Johnson had recently been sacked from his delivery-driving job for poor time-keeping. Mr Johnson disputes the fairness of the dismissal but has not taken it further. His previous employer was Polish, and when Mr Johnson saw the newly opened shop with Polish signage in the window, he momentarily lost his temper. He very much regrets the incident and has sent a letter of apology to Mr Rakowski. The solicitor says that Mr Johnson has not been in trouble before or since the single offence two years ago and has recently secured a new job, again as a delivery driver. His means form is handed in and shows net income of £230 per week with no unusual outgoings. Credit is requested for his guilty plea.
| THE SENTENCE |
| Offence: | Racially aggravated criminal damage |
| Entry Point: | Community penalty |
| Culpability: | Intentional |
| Harm or risk of harm: | Disruption of business; distress to individual and community |
| Offence aggravating factors: | Deliberate and premeditated Unprovoked Fear caused by implied threat to return Indiscriminate revenge attack Carried out at night |
| Offence mitigating factors: | None |
| Offender aggravating factors: | Second similar offence Ran away from police |
| Offender mitigating factors: | Shows remorse Early guilty plea (but overwhelming evidence) Letter of apology sent to victim |
We began by considering the actual damage caused to the fabric of the building. There was limited defacement of the window and door but no other physical damage. We therefore placed the offence in the low-level community penalty band.
We then considered the aggravating factors of the offence which elevated the sentence to medium community penalty but in taking into account the mitigation, we decided to retain it at that level. We would have asked for a fast delivery report from probation, preferably verbal and sentenced on the day.
OUR SENTENCE
There were a number of questions that we should have liked answered by the advocates, viz: does the victim live above the shop? Is the victim middle-aged to elderly? Is the Polish community sizeable in the area? Assuming that the answers to the above questions are yes, we would have considered increasing the entry point but again, considering the mitigation and the fact that the offence appeared to be one of over-reaction, we would have continued to retain it at medium community penalty but have increased the hours of work and asked for a report as above but sought information about the offender’s suitability for either the ‘Think First’ or ‘One to One’ programmes.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Nottingham bench?
| SCENARIO |
FACTS
Following a pre trial review this morning the defendant, Kerry Evans, enters guilty pleas to both offences.
Four months ago the defendant was involved in a road traffic accident whilst driving a van. She failed to give way at a roundabout to traffic from her right causing the driver of an oncoming vehicle to brake sharply. However, a collision was unavoidable and extensive damage was caused to both vehicles and minor injuries to the driver of the other vehicle.
The defendant admits that at the time she was responding to a call to her mobile phone and was distracted for a split second immediately prior to the collision.
The defendant has two previous convictions:
When served with the witness statements the defendant accepts responsibility for causing the accident although the driver of the oncoming vehicle was probably driving too fast for the road conditions. She accepts that were it not for the mobile phone ringing, the accident would not have occurred.
DEFENCE MITIGATION
| THE SENTENCE |
Offences: driving without due care and attention; driving whilst using a mobile phone. We sentenced on the ‘due care’ offence being the more serious, aggravated by the lesser offence.
Penalty: Level 4 fine; must endorse 3-9 points OR discretionary disqualification.
Guideline: discharge or fine (B).
Aggravating features: use of mobile whilst driving; previous driving offences.
Mitigating features: momentary lapse – but see below.
Culpability: high, due to the admitted use of the mobile.
Harm caused: injury to third party and extensive damage to his car.
Purpose of sentence: punishment.
OUR SENTENCE
Many courts will feel some sympathy for a momentary lapse in concentration which causes an offender’s driving to fall below the standard expected of a reasonable, prudent and competent driver in all the circumstances. However, in this case, by the defendant’s own admission, that lapse was directly caused by her responding to her mobile phone – an act both deliberate and avoidable – and the lapse was directly responsible for the accident in which a third party suffered both injury and extensive damage to his car. There are also previous driving offences on her record. We felt that the ‘due care’ offence was sufficiently aggravated to pass the disqualification threshold.
The offender mitigation was considered, noting her employment and family circumstances and her guilty pleas entered at PTR stage. We decided to impose a short disqualification of one month. Taking into account our view of the offending and Ms Evans’s financial circumstances, we would also impose a fine of £300. We would apply a discount of 20% to that figure by way of credit for her guilty pleas at PTR stage. Costs are not mentioned but would be awarded at an appropriate level for the stage of proceedings; the victim surcharge of £15 would also of course be imposed. There would be no separate penalty for the ‘use of mobile’ offence, but the details would be endorsed on her licence. The court has no power to consider compensation as that will be dealt with via the insurers concerned.
The sentence announcement would explain the court’s view of the aggravated offence and the reason for the reduced discount for her guilty pleas.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Havering bench?
| SCENARIO |
FACTS
The case is listed for trial today as defendant John Morgan has previously entered a not guilty plea. At the last minute he now pleads guilty ‘to save Jane the ordeal of giving evidence’. Jane is the victim in both offences.
Prior to this incident the parties had been living together for about 18 months. They have a boy aged six months and Jane has a girl aged five from a previous relationship.
The assault occurred 16 weeks ago at 3.30am in the town centre after both parties had been out drinking together. The victim states that the defendant accused her of flirting with a stranger earlier that evening and when she denied this and tried to placate him, the defendant flew into a rage and assaulted her with various slaps and punches to her head and kicks to her legs and body. The assault stopped only when two passers-by intervened and took the victim away from the scene. The incident was captured on CCTV and the defendant was later arrested. Fortunately, the victim sustained only minor injuries, bruising and redness to her cheeks, arms and legs. Mr Morgan has no previous convictions.
As a result of the assault, the victim left the marital home with the two children and went into a Women’s Aid refuge. In her victim personal statement, Jane says, ‘I did nothing at all to justify the assault. I know John has got a temper and he has hit out at me in the past but I never thought he’d do this in public. I fear for my safety and for that of my children and I dread to think what would have happened if the children had witnessed this assault. I feel that I can’t go anywhere for fear of bumping into him and worry about what he will do next. I’m scared of being assaulted again and I’m scared of what will happen when I see John next.’
The witness intimidation comprised a series of telephone calls to Jane’s mobile phone followed by repeated text messages over a two-week period threatening to harm her and the children if she attended court to give evidence. John threatened to cause damage to Jane’s parents’ home if she attended at court. The text messages were saved and when confronted by the contents, John pleaded guilty.
DEFENCE MITIGATION
| THE SENTENCE |
Offences: Common assault and witness intimidation
Aggravating factors:
• it was a domestic incident that took place in the street
• it occurred after drinking (both parties had been drinking)
• it was a sustained attack and only stopped when passers-by intervened
• the threatening text messages continued over a two-week period
Mitigating factors:
• the victim sustained only minor injuries following the attack
• John is of previous good character
• he showed remorse for his actions
• he has already referred himself for counselling.
Purpose of sentence: Punishment, reform and rehabilitation
OUR SENTENCE
These were serious offences and, as a result, an all-options report would have been requested as custody would have been seriously considered. The bench would have also considered the impact of these offences upon the victim, particularly as she had spoken of her continuing fear of him.
However, it was considered appropriate to give a community penalty so as to punish him for his actions but at the same time attempt to get him to cope with, and address, his anger problems.
Therefore we make a community order for a period of 18 months with a supervision requirement. The order is to include an unpaid work requirement for a total of 200 hours.
Also, if probation considers it appropriate, he will undertake the Integrated Domestic Abuse Programme (IDAP). If not considered appropriate, he will undertake Aggression Replacement Training to assist with him managing his anger.
In addition he will pay compensation of £200 to the victim.
No full credit has been given for his guilty plea. He only made a late plea of guilty at the trial. As a result he was given a small reduction in the total number of unpaid work hours.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Holyhead bench?
| SCENARIO |
FACTS OF THE OFFENCE
Police were called to an incident in the early hours of the morning outside a nightclub. They saw an incident involving two men. A group of around ten other people were watching and shouting encouragement.
As police officers approached the scene one of the men ran off. They restrained the other man and arrested him and he was found to be in possession of a fixed blade Stanley knife concealed in his jacket pocket.
On questioning the man and the spectators, it emerged that there had been a disagreement, between the man they arrested (Mr Todd) and the man who ran off, over a taxi. There had been abusive language on each side and the other man then attacked Mr Todd, punching him in the face and body. Mr Todd had pulled out the knife and threatened the man who then backed off. Mr Todd put the knife back in his pocket when he saw the police arriving.
FACTS OF THE OFFENDER
Mr Todd (18) has three previous convictions. Six months ago he was fined for being drunk and disorderly. Nine months ago he was fined for common assault (a fight outside a pub) and two years ago he was placed on a referral order for another offence of common assault.
Mr Todd entered a guilty plea on his first appearance and his solicitor says that the facts are agreed, though the bench wonders whether he had any choice as the evidence against him is very strong. He emphasises that the other man (who has never been traced) was the aggressor and the knife was carried (and used) only in self-defence. Mr Todd has been threatened before with knives and felt that the only way he would be safe was to carry a knife himself. The record is agreed and Mr Todd admits he has a problem keeping his temper under control.
Mr Todd is a single man who lives with his parents. He is in regular work as a labourer.
The pre-sentence report suggests there is a risk that Mr Todd will offend again in the future and commit further offences of disorder or low level violence. The probation officer recommends a community sentence with supervision and participation in an anger management course.
| THE SENTENCE |
Offence: possession of a bladed article
Penalty: Level 5 fine and/or 6 months
Guideline: custody (for first time offender pleading not guilty)
Aggravating features of offence:
• Weapon carried – planned use
• Weapon brandished
• Location – outside nightclub
• Offender under influence of alcohol? (see below)
Mitigating features of offence:
• Acting out of fear
Culpability: reckless
Harm caused: risk of serious harm but no actual harm caused
Offender mitigation:
• Early guilty plea (but evidence very strong)
• Not the aggressor
• Age
Purpose of sentence: rehabilitation, deterrence, punishment
OUR SENTENCE
We would have queried the alcohol aspect of the offence; in coming to our decision we assumed that the bench requesting the PSR had left open the option of custody.
We were referred to several cases by our legal advisor (Hopkins 1996, Buzzar 1996, Proctor 2000). We took into account current thinking in the judiciary concerning the carrying of knives, etc.
We considered the offence so serious that only custody was appropriate. We would impose a suspended sentence order – the custodial period for three months, suspended for 12 months, with a supervision requirement. We would ask the probation service to consider work with anger management and alcohol awareness (if appropriate – above).
We make no order for compensation but would order costs together with forfeiture and destruction of the Stanley knife.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Berwick bench?
| SCENARIO |
FACTS OF THE OFFENCE
Gary Munday has a long record of offences of dishonesty. There have been six appearances for theft of items from shops over the last six years involving goods valued at between £20 and £80. The most recent offence took place five months ago when he received a sentence of two months’ imprisonment suspended for six months together with an unpaid work requirement of 150 hours and a requirement to complete the ‘Think First’ programme. Previous sentences have been fines and a community order with unpaid work which was completed successfully.
Mr Munday entered an electrical goods shop and stole a digital top box for a TV. He was intending to sell the item in order to raise cash. He was seen leaving the shop without paying for the item and was detained by a member of staff. He was abusive to the staff member but eventually returned to the shop and waited until a police officer arrived who arrested him. The police officer reported that Mr Munday’s breath smelt of intoxicating liquor but he did not believe him to be drunk.
FACTS OF THE OFFENDER
Mr Munday is divorced and has two children aged three and five who live with their mother. He sees them very occasionally. Mr Munday has no formal qualifications and undertakes casual labouring work. He has not been able to work for the last two months as he injured his back on a building site and is still receiving treatment. He was carrying out his unpaid work but this has also been suspended as a result of his ill health. He has participated fully in the programme requirement.
Drink has not been seen as a problem for him in the past but he has been drinking more heavily since he has been unable to work and the offence took place after he had spent all his benefits and needed money for food and drink.
The case was adjourned once for the provision of advance information and he has today entered a guilty plea.
The report expresses disappointment at the latest offence as his supervisor felt that he had made good progress on the programme. It is recognised that there remains a high risk of further offending but it is all at a relatively low level and there would be little gained by sending him to prison. He has made good progress within the programme requirement and this might well be damaged by a period in prison. It is recommended that the existing sentence is amended by adding a curfew requirement and that a fine be imposed commensurate with his limited financial circumstances for the new offence.
Mr Munday expresses regret for the offence and has written a letter of apology to the shop assistant.
| THE SENTENCE |
Offence: Theft of electrical items, value £40 from a shop.
Penalty: Level 5 fine and/or 6 months.
Guideline penalty: community sentence.
Aggravating factors:
• The defendant is in breach of a suspended prison sentence. Long list of similar low-level thefts over a six-year period.
• The offence was premeditated.
• The defendant had consumed alcohol but was not considered to be drunk by the police.
• There was verbal abuse towards the shop attendant.
• Low value of goods stolen.
Mitigating factors: Co-operated with the police and returned to the scene of the offence to wait for the police. Wrote a letter of apology to the shop attendant.
Culpability: The defendant entered the store with the intention of stealing items to sell on to raise cash. He was abusive to a member of staff when challenged with the stolen items.
Harm caused: There was little actual harm caused. The goods were recovered. Some distress would have been caused to the member of staff who was verbally abused.
Purpose of sentence: Punishment, deterrence and rehabilitation.
OUR SENTENCE
The starting point in the guidelines for an offence of theft is a community penalty. By committing this offence, however, Mr Munday is in breach of a two-month prison sentence suspended for six months. The presumption is that the suspended sentence will be activated unless we take the view that it would be unjust to do so. The new offence, which is of a similar nature, was committed near the end of the operational period, and Mr Munday is said to have made good progress, albeit failing to ‘think first’. There could, therefore, be grounds for either activating the sentence with a reduced tariff, or amending it. We believe that because Mr Munday had only one month left on the suspended sentence it would be just to amend it. The suspension will be extended by six months during which time Mr Munday should complete the unpaid work (fitness allowing). There will be a curfew requirement (4pm-4am) for two months. This will punish Mr Munday by depriving him of his liberty, but will allow him to attend any medical appointments for his back problems.
For the new offence a fine is not appropriate. There are a number of aggravating features, and it is recognised that there is a high risk of reoffending. For this reason a community order for six months with a supervision element would be appropriate to give Mr Munday ongoing support to prevent him reoffending and support him. In his original order he had ‘Think First’ but no supervision order. Credit has been given for his early guilty plea.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with the response from a panel drawn from the Pontefract bench?
| SCENARIO |
FACTS OF THE OFFENCE
Miss Watson and Mr Pertwee are employed in a warehouse belonging to a private postal services company. Goods are collected by the company and taken to the warehouse for sorting prior to dispatch to the addressee. Mr Pertwee supervises five members of staff including Miss Watson who undertakes sorting work.
Over a period of three months, and at the instigation of Miss Watson, the two defendants have been intercepting valuable packets and stealing them. The item in the charge was a laptop computer and there have been ten other similar offences which the defendants have asked to be taken into consideration, involving items to a total value of £2,300.
Security at the warehouse was not effective. Although there were occasional random searches of employees as they left work, Miss Watson always knew when these were due to take place and was therefore able to avoid detection.
When the offences came to light a police investigation followed and all members of Mr Pertwee's team came under suspicion. Mr Pertwee eventually admitted his participation in the offences and identified Miss Watson as his co-offender. Miss Watson at first maintained her innocence but they were both nevertheless charged and entered guilty pleas at the first appearance at court. The laptop computer was recovered but compensation is claimed for the remaining £2,300.
FACTS OF THE OFFENDERS
Miss Watson is the daughter of the warehouse manager and has been working there for nearly a year. She is single, lives with her parents following the failure of a relationship with a man with whom she had been living for two years. She was left with substantial debts and saw the thefts as a way of paying these off. She has no previous convictions but was cautioned two years ago for an offence of drunk and disorderly. The PSR states that she is very remorseful, that there is a low risk of further offences being committed and suggests that an appropriate disposal would be a curfew order with electronic monitoring or a fine. She is suitable for unpaid work but limited resources in the probation service could better be deployed elsewhere.
Mr Pertwee is married with a six-month-old daughter. His wife does not work and he too claims that the motive for committing the offence was money problems. He has no previous convictions or cautions and states that the idea for the offences came from Miss Watson. The PSR again suggests there is a low risk of reoffending and a low risk of future harm and recommends a curfew order or a fine for similar reasons as Miss Watson.
Both defendants have lost their job and are in receipt of benefits.
| THE SENTENCE |
Offence: Theft breach of trust (+10 offences to be taken into consideration)
Penalty: Level 5 fine and/or 6 months
Aggravating factors of offence:
• Breach of trust
• Other employees placed under suspicion
• Period over which offence committed
• Organised and planned, including use of inside information to avoid detection
• Senior employee involved (George Pertwee)
• Offences instigated by Joanna Watson who in addition gained the inside information of when security searches were planned
• Effect on reputation of postal company
• Value of property taken.
Mitigating factors of offence: Ineffective use of security system.
Culpability: Intentional
Harm caused: Actual loss to company of property stolen. Likely damage to company reputation and possible loss of future contracts.
Offender mitigation: No relevant previous convictions for either defendant; Remorse; Early admission of guilt by George Pertwee but tempered by only admitting once all employees under suspicion.
Purpose of Sentence: Punishment, reparation, deterrence
OUR SENTENCE
We were referred to the case of R v Barrick by our legal adviser which contains Court of Appeal guidelines for cases of this nature. We noted the use to which the property was put, namely payment of debts and that the laptop was recovered. We are also aware of the serious nature of these types of offences. We particularly note the supervisory role of Mr Pertwee and also that Miss Watson instigated the offences and used her inside knowledge to commit them.
Having regard to the aggravating features of this offence, including the planning and sophistication used in committing these offences and the need to impose deterrent sentences we decided that the offences had crossed into the custody threshold and were so serious that no other sentence was appropriate. Our sentence would be a custodial sentence of six weeks, having regard to credit for guilty pleas, the lack of previous convictions and remorse shown. We would not find it necessary to distinguish between the two offenders having regard to their joint enterprise. We did not find it necessary to commit for sentence having regard to the value involved.
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with Morris Cooper DJ’s sentencing response?
| SCENARIO |
FACTS OF THE OFFENCE
Police were called to a city-centre pub on a Saturday night. The landlord had refused to serve Michael Hoskins, believing him to be drunk. Mr Hoskins had left the pub quietly enough with two friends, but the three of them stood just outside while his friends finished their own drinks. Hoskins began to make derogatory comments about the pub and the landlord to customers entering the premises. Hearing about this, the landlord went outside and asked the three to be on their way. Hoskins became abusive, grabbed one of his friends’ pint glasses and waved it threateningly in the landlord’s face, saying ‘you’ll get some of this if you don’t fxxx off’. The landlord went back inside and called the police. A patrol arrived some ten minutes later to find Hoskins still outside the pub, shouting at passers-by. After some discussion with the constables, he quietened down and caused no trouble when arrested and taken back to the police station. In interview he stated that he had had ‘grief’ with the landlord on previous occasions and just lost his temper – he hadn’t intended to hit the landlord with the glass but had been momentarily out of control.
He pleads guilty to the charge at the first opportunity.
FACTS OF THE OFFENDER
The defendant is 24. He has a similar previous conviction some three years ago, for which he was fined, but is otherwise of good character. He is in full-time employment as a carpet-fitter and declares earnings of £1,200 per month with no unusual outgoings. On his behalf his solicitor says that he is very sorry for what happened and acknowledges that he had had too much to drink. He has already written to the landlord to apologise. His solicitor asks the court to deal with him by way of a financial penalty, pointing out that he was cooperative with the police and has fully faced up to his actions.
| DJ COOPER'S SENTENCE |
Offence: Threatening behaviour; s4 Public Order Act
Penalty: Level 5 fine and / or 6 months
Guideline penalty: community sentence
Aggravating factors: City centre on a Saturday night; threats towards a public house licensee in response to him carrying out his duties responsibly; use of glass in connection with threat; similar previous conviction, albeit three years ago.
Mitigating factors: Cooperated with police; remorse, including letter of apology; plea of guilty at first opportunity coupled with admissions in interview.
Culpability: This was an alcohol fuelled reaction to being refused service, but not planned or organised and not a group action. Although, momentarily, there must have been an intention to frighten the licensee, and knowledge that it was a public place, I would put culpability in terms of wider harm to the public no higher than the level of recklessness.
Harm caused/risked: Little actual harm was caused (distress to landlord and possibly to passers-by), but there was a significant risk of provoking a reaction by others in view of the time and the location, albeit over a short period of time.
Purpose of sentence: Punishment and deterrence.
MY SENTENCE
The gravamen of public order offences is concerned with actual or potential harm to the public. No actual violence was used in this case and the defendant was acting alone. The threat with the glass is what makes it a s4 offence and that appears to have lasted only seconds. The remainder of the defendant’s behaviour was drunken, disorderly conduct. My starting point for sentencing, balancing the aggravating and mitigating factors, would be a medium-intensity community sentence. Maximum credit for the plea of guilty brings this down to the bottom end of the community sentencing bracket. In view of the defendant’s financial circumstances and the lack of any strong indication that intervention is necessary, my conclusion is that the offence can be dealt with by a stiff financial penalty (see Sentencing Guidelines Council Guideline ‘New Sentences: Criminal Justice Act 2003’ at paragraph 1.1.9). I would impose a fine of £500 together with the victims’ surcharge and prosecution costs. I would give the defendant a strong warning as to his future behaviour.
(Note: a licensed premises exclusion order is not available as the offence was not committed ‘on’ the premises.)
Look at the scenario below and consider your sentence. Follow the structured decision-making steps introduced by the Criminal Justice Act. How does it compare with Morris Cooper DJ’s sentencing response?
| SCENARIO |
FACTS OF THE OFFENCE
In May 2007 Alan Murray, 46, was driving a motor car on a busy main road at 11.00pm. He collided with another vehicle when it turned into the road ahead of him. Damage was caused to both vehicles. The defendant’s wife was travelling as a passenger with him and suffered minor injuries. Police were called to the scene where Mr Murray failed the roadside test, was taken to the police station, and gave a sample of breath with a reading of 85.
He cooperated with the police and acknowledged that he had been banned for 12 months in July 2006 as a totter. His record also shows a previous conviction for excess alcohol in January 1999, for which he had been fined and banned for 12 months. There are no other convictions on his record.
He pleaded guilty at the earliest opportunity to both offences.
FACTS OF THE OFFENDER
Mr Murray had been at a restaurant with his wife to celebrate his birthday. His wife had driven to the restaurant and had intended to drive home. Mr Murray had had several drinks with the meal. His wife had begun to feel ill towards the end of the evening and Mr Murray had phoned for a taxi. After an hour’s wait and two further calls a taxi had still not arrived, his wife was feeling progressively worse, and so Mr Murray decided to drive home – a journey of some ten minutes.
Mr Murray is employed as a manager at a local supermarket, earning £25,000 pa with the usual outgoings of a home-owner. Through his solicitor he expresses his remorse for the offences, saying that he had had no intention of driving that night, and only did so because of his concern for his wife. Apart from the road traffic offences, he is a man of good character.
| DJ COOPER'S SENTENCE |
Offence:
(i) Driving whilst disqualified
(ii) Driving with excess alcohol – 85 ug in breath
Penalty:
(i) Level 5 fine and / or 6 months + 6 points or may disqualify Guideline penalty: Community Sentence
(ii) Level 5 fine and / or 6 months + mandatory disqualification
Guideline penalty: Level C fine (but on the cusp of the threshold to a community sentence)
Aggravating factors: The combination of the two offences; alcohol level; driving on a busy main road; collision involving damage and injury; previous conviction for excess alcohol.
Mitigating factors: Guilty pleas at the earliest opportunity; cooperation with police; extenuating circumstances leading to driving; remorse expressed; general good character apart from driving record.
Culpability: High. The defendant must have known he had consumed too much alcohol and he knew he was disqualified.
Harm caused/risked: High risk of harm.
Purpose of sentence: Punishment, deterrence, reform.
MY SENTENCE
It is not clear whether the defendant’s level of intoxication was a factor in causing the collision or whether the defendant could not have avoided a collision as a result of the actions of the other driver. Assuming the defendant did not cause the collision, I would still regard the starting point, taking these offences together, as somewhat over the custody threshold. However, the mitigating factors, together with the early plea of guilty, are sufficient to bring the sentencing level down to a community sentence in the medium to high range. I have taken into account the fact that the offences occurred ten months into a twelve month disqualification and that the previous excess alcohol conviction was eight years earlier. Depending on the content of a pre-sentence report, I would make a community order of one year duration containing either a single requirement of 150 hours unpaid work or alternatively supervision coupled with the Drink Impaired Drivers Programme. I would impose a disqualification of 40 months in view of the alcohol level (the previous conviction gives rise to a minimum of three years). I would be prepared to consider making an order allowing attendance at the Drink Drivers’ Rehabilitation Course.
