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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lawson, R v [2005] EWCA Crim 1840 (01 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1840.html Cite as: [2005] EWCA Crim 1840

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st July 2005

Mr Justice Field:

1. On 1st March 2005 this appellant appeared before His Honour Judge Griggs sitting at Exeter Crown Court. The appellant had been committed for sentence by Magistrates at Exeter on 1st March 2005 following guilty pleas to charges of dangerous driving, driving with excess alcohol, driving whilst disqualified and driving without insurance. The learned judge proceeded to pass sentence as follows: in respect of the dangerous driving, 18 months' imprisonment; in respect of the excess alcohol, four months' imprisonment concurrent; in respect of driving whilst disqualified, again, four months' imprisonment and, again, a concurrent sentence; and no separate penalty in respect of the driving without insurance, except for endorsement of the licence. The judge also disqualified the appellant from holding a driving licence for six years. Further, he made an Antisocial Behaviour Order under which the appellant was:

"... not to own nor borrow any motor vehicle or occupy the driver's seat of a motor vehicle on a road or other public place until further order."

2. The appellant appeals the length of the disqualification and the Antisocial Behaviour Order with the leave of the single judge.
3. The offences for which the appellant was sentenced arose out an incident that took place towards the end of January 2005 when he got behind the wheel of a car having drunk too much. He drove the car in order to carry his girlfriend and a couple of friends. They had been drinking, but he picked up his girlfriend's car and took his passengers through a number of streets in the city centre travelling at speed. A Vauxhall motor car was waiting at a junction to pull out into the street the appellant was driving along. The appellant's speed was about 50 to 60 miles an hour in a 30 mile an hour area. The Vauxhall stopped with its nose very slightly out into the main carriageway, but the appellant was travelling at such speed he was unable to avoid it. He skidded into it, hit traffic lights, knocking them over, and both cars ended up in the middle of the carriageway. The driver of the Vauxhall was slightly injured, as were the appellant's passengers.
4. When the appellant was interviewed, he admitted the offences. The reading when he was breathalysed was 60 mgs, the legal limit being 35 mgs.
5. The appellant had previous convictions which included three previous convictions for driving whilst disqualified and two for driving with excess alcohol. On 6th January 2004 he had been disqualified from driving for three years for an offence of driving with excess alcohol.
6. When passing sentence, the learned judge observed that the appellant had been before the courts on a number of previous occasions and on no less than six occasions they had been for driving matters, such as driving with excess alcohol and driving whilst disqualified. Concerning the imposition of the Antisocial Behaviour Orders, the learned judge said it was quite apparent that the appellant had a total disregard for penalties imposed by the courts and that this was a case where he had shown he was likely to cause harassment, alarm and distress to other road users and passengers in the car he had driven. Accordingly, it was appropriate to make an Antisocial Behaviour Order which would forbid him from owning, borrowing or occupying a driver's seat of any motor vehicle on a road or any public place until further order. He ordered that the order remained in force until the appellant applied to the court to lift it after the six year ban had expired and if he had not reoffended it might well be that the court would be persuaded to lift the order, but it had been imposed to provide some security for people who were likely to be alarmed, harassed or distressed by his behaviour.
7. It has been submitted on behalf of the appellant by Mr Bradley that the period of disqualification was too long. On the one hand, the appellant appeared to be someone who disregarded earlier court orders imposed in respect of driving offences. For instance, he was only one year into a three year disqualification period when the offences for which he was sentenced occurred. On the other hand, the authorities suggest, particularly with regard to young men, that lengths of disqualification should not be so high as to act as a disincentive to rehabilitation.
8. In our judgment, although the appellant was convicted of a serious piece of dangerous driving and was only one year into a three year period of disqualification, the period of six years's disqualification was, in all the circumstances, too long. In our judgment, the appropriate period of disqualification was one of four years.
9. In respect of the Antisocial Behaviour Order, Mr Bradley submitted that the effect of the order is that the appellant will remain unable to rehabilitate himself at the end of the period of disqualification without further application to the court. He submitted that the order ought not to extend beyond the date of the disqualification and the applicant ought not to be in a position where he needs to apply to the court to be allowed to drive after the period of disqualification is ended.
10. He also relied on a recent decision of this Court R v Kirby [2005] EWCA Crim 1228. There the appellant, who was 29, had pleaded guilty to dangerous driving and driving whilst disqualified and been sentenced to 20 months' imprisonment for dangerous driving and five months' imprisonment consecutive for driving whilst disqualified. A period of disqualification was also ordered. In addition, the sentencing judge made an Antisocial Behaviour Order against that appellant for ten years. The terms of order in that case were that the defendant must not:

"(1) drive, attempt or drive or allow himself to be carried in any motor vehicle which has been taken without the consent of the owner or other lawful authority, and (2) drive or attempt to drive a motor vehicle until after the expiration of his period of disqualification."

11. In Kirby the appellant had been a man with many previous convictions, the vast majority of which were for motoring offences. Included in those previous convictions were numerous convictions for driving whilst disqualified.
12. In giving the judgment of this Court David Clarke J said at paragraph 9 in the judgment:

"In our judgment this decision of the court [he was referring to the decision of P] and the earlier case of C serve to demonstrate that to make an Antisocial behaviour Order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending is not a use of the power which should normally be exercised."

13. He went on in paragraph 11:

"In our judgment the making of an order of this sort should not be a normal part of a sentencing process, particularly in cases which do not in themselves specifically involve intimidation, harassment and distress. It is an exceptional course to be taken in particular circumstances. There was, in our judgment, nothing in this case, despite the deplorable record of the appellant for offences of this sort, to justify the use of this power in the present case. Its effect was no more than to transfer any such offences into a different offence, namely breach of an Antisocial Behaviour Order, so as to increase the potential penalty. In our judgment that was unwarranted in this case in the absence of exceptional circumstances."

14. In our judgment, the substantial effect of the Antisocial Behaviour Order imposed in this appeal was the same as in the case of Kirby. The consequence of the order was that if the appellant were to be in breach of the disqualification order not only would he be liable to be prosecuted for that offence, which carries with it a maximum sentence of six months' imprisonment and a fine of £5,000, he would also be liable to be punished for being in breach of the order.
15. In our judgment, for the same reasons as were given in Kirby, the ASBO made in this case was unjustified and disproportionate. In Kirby this Court thought it appropriate to set aside the order and to make no other ASBO in substitution for the original order. We take a similar view. We quash the ASBO made in this case and do not order that any other ASBO should be made in substitution. For these reasons, and to that extent, this appeal is allowed.