Criminal Damage Prosecution

Present a legal analysis covering the sentencing of an offender and the subsequent management/ enforcement of the ensuing sentence, including any further offending that resulted in additional prosecution.

1. Summary of the Case

Counsel for the defendant must present to the court the facts of the case in order that both the culpability of the defendant be considered and so that the Judge/Magistrate may consider the sentencing of the Defendant (R v Newton (1982)). The facts are as follows. The present case involves a male offender aged 30 years old. He was arrested and charged on the 11^th October 2004 with criminal damage and threatening behaviour. On the 8^th October he had got angry with a female friend who had rebuffed his advances, as she was a lesbian. The offender went to her work place, which is also her place of residence and kicked down her door, threatened her verbally and then left.

2. The Offence and The Substantive Law

The defendant was charged with Criminal damage and threatening behaviour, before considering sentencing it is important to first deal with the substantive law:

Section 1(1) of the Criminal Damage Act 1971 provides that:

"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."

The actus reus of this offence consists of (1) destroying or damaging (2) property (3) belonging to another (4) without lawful excuse.

1. Destroys or damages

There is no legal definition of "destroys or damages". However Smith and Hogan offer an explanation: (Smith & Hogan: 1994 p694)

'What is contemplated by "destroy or damage" is actual destruction or damage; that is, some physical harm, impairment or deterioration which can be usually perceived by the senses.'

The damage or destruction in issue will normally arise from the defendant's freely willed act.

2. Property

The basic definition of property, for the purposes of this offence, is provided by s10 (1) of the Criminal Damage Act, which states:

'In this Act "property" means property of a tangible nature, whether real or personal, including money and- a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land. For the purposes of this subsection "mushroom" includes any fungus and "plant" includes any shrub or tree.'

3. Belonging to another

Section 10(2) provides the basic definition of belonging to another. It states:

"Property shall be treated for the purposes of this Act as belonging to any person- a) having the custody or control of it; b) having in it any proprietary right or interest; or c) having a charge on it."

This offence requires either (1) intention or (2) recklessness.

The defendant must be proved to have intended the damage or destruction of property.

Since a defendant commits no offence under s1(1) in damaging or destroying his own property, it follows in principle that he should not be guilty of an offence where he destroys another persons property under the mistaken belief that it is his own. Whether the defendant's mistake is one of fact or law he commits no offence for he lacks mens rea (R v Smith [1974] 1 All ER 632).

R v Caldwell [1981] 1 All ER 961, establishes that a defendant is reckless for the purposes of s1(1) if his conduct:

(1) Creates an obvious risk of damage to property; and (2) he either (a) gave no thought to the possibility of there being any such risk, or (b) recognising that there is some risk goes on to take it.

This test is objective in nature in that it imposes liability upon the defendant for not adverting to a risk which would have been "obvious" to the reasonable person. Consequently, it does not matter that the defendant was incapable of appreciating the risk: (Elliott v C (a Minor) [1983] 2 All ER 1005)

It would appear from the limited information that we have been presented with the Actus Reus has been committed and the Mens Rea element has been satisfied. The next consideration following the charge will be the mode of trial.

3. Mode of Trial

Counsel must advise and plead in relation to the mode of trial. Criminal Damage is an offence that is triable either way. Section 40 of the Magistrates' Courts Act 1980 states that the offences named in Schedule 1 to the Act shall be triable either way and Schedule 1, paragraph 29 names offences contrary to the Criminal Damage Act 1971 as being in that category and in particular destroying or damaging property contrary to s. 1(1) of the 1971 Act. Section 22 of the 1980 Act provides that when criminal damage is charged, the court must determine whether the value amounts to 5,000 and if it appears that the value does not exceed that sum the court should proceed in the ordinary way without considering the section. The court gave consideration to which mode of trial was 'suitable' having consideration to all of the circumstances. Schedule 2 to the 1980 Act, to which s. 22 applies, lists criminal damage as an offence to be tried summarily if the value is no more than 5,000. The court considered that as the damage did not exceed 5,000 this was a case that was triable summarily.

4. Sentencing

Counsel should give consideration to sentencing law in England, and a brief overview is provided below:

Statutory law provides judges with guidelines or maximum and minimum criteria that are coupled with similar limitations for each type of court and therefore the judiciary is encouraged to exercise a broad discretion. Sentencing law, for the time of the offence, which was on 11^th October 2004, is found under chapter 12 of the Criminal Justice Act 2003.

Counsel should also provide consideration to applicable judicial decisions. Counsel should provide the court with guideline judgements as it was held in the case of R v Panayioutou that principles of sentencing from previous cases must be provided in order to allow for the court to uniformly continue, especially where there is cause for mitigation. This obligation is however reciprocal in that he sentencing judge must allow counsel to argue either for or against certain types of sentencing (R v Scott (1989) 11 Cr App R (S) 249) such as custody as opposed to community service.

The Court was also required to contemplate the seriousness of the offence, which included culpability and harm that, in this case, might have forseeably been caused (CJA 2003 s 143(1)). In the present case, the Court considered that the maximum harm that may have been caused in the present offence was damage to the door. The seriousness of the offence was therefore, minimal pecuniary loss, inconvenience but possibly severe trauma to the victim.

The Criminal Justice Act s148 re-enacts PCC(S)A s35, making provision as to when it is appropriate to impose a community sentence. In considering a community sentence to be passed, consideration must be given to whether or not the offence is serious enough to warrant one. The Court reached the conclusion that the guilty plea and the nature of the offence as a first offence merited abandonment of any consideration of a custodial sentence. The court determined that a community sentence, in particular, a community rehabilitation order, as defined under s41 of the PCC (S) A 2000 s33 and this is where an offender is under the supervision of an officer of a local probation board and must comply with set requirements. This can be for a period from 6 months to three years. This will be where the court feels that it is desirable either:

• secure the offender's rehabilitation
• Or protect the public from harm or
• Prevent the offender committing further offences

When considering the precise nature of the Community Sentence to be passed, the Court was required to consider the seriousness of the offence coupled with the suitability of the Community Sentence for the offender.

These considerations had to be procedurally accounted for in the pre sentence report (S 156(1), CJA). In accordance with National Standards on the Contents of the Pre Sentence report, it is a requirement that the sentence be based on the results of the OGRS score and the OASys risk of harm assessment (National Standards, SS2.6). Previous offences and seriousness of the offence are expressly accounted for under s 170(7) of the CJA 2003.

5. Enforcement

If the community sentence has been breached several penalties can ensue. This include, but not limited to:-

• Magistrates revoking an order which they imposed
• The Crown Court alone may revoke the order if it imposed the original sentence
• Non-compliance penalties; a fine, or if non-compliance is wilful and persistent, custody
• If the defendant re-offends re- sentencing is possible

Compulsory attendance commenced within two working days of sentence being passed (National Standards, 2005, SS8.10) and the offender commenced attendance and during June 2005 failed to attend on two occasions.

At this point, the responsible officer has, in accordance with Schedule 8, Part two, paragraph, 5(1) of the CJA 2003, issued the offender with a warning. This states the circumstances of the warning ( CJA 2003, Schedule 8, Part two, paragraph 5(2)(a)), its unacceptability (Schedule 8, part two, paragraph 5(2)(b)) and also stipulates the consequences for a further breach as required under Schedule 8, part two, paragraph 5(2)(c). He failed to contact in advance his supervising officer to notify them that he was not going to attend these appointments. After he did not attend he also failed to provide evidence to support his reasons for non-attendance within seven days. National Standards (2005) state that when two or more absences are unacceptable, then an offender is in breach of their order. Accordingly the Enforcement Officer was notified, and a date for the breach to be heard was requested from the court. The exact allegations were as follows:

A progress report was completed by x's supervising Officer to indicate how x had complied with his order in general , the outcome the supervising officer sought was a fine, and for the order to be allowed to continue. However as x had committed these offences after April 4^th 2005, the recent Act would have permitted the order to be revoked, and resentenced X to a more onerous sentence.

6. Aggravating Factors

The Court is under a duty to pass sentence in a non-discriminatory manner as the National Standards dictate that all sentencing must be impartial (National Standards, 2005, SS2.9)

The Magistrate was obliged under the Criminal Justice Act 2003 to consider the purpose of the sentencing. In accordance with s 142(1), this meant that the Court was required to consider the need to punish the offender (CJA 2003, s 142(1)(a)), the need to reduce the crime by deterrence (CJA 2003, s 142(1)(b)), rehabilitate the offender (CJA 2003, s142(1)(c)), protect the public (CJA 2003, s 142(1)(d)) and the requirement for repatriation by the offender to the victim (CJA 2003, s 142(1)(e)).

The Sentencing Advisory Panel note that in ascertaining the seriousness of an offence it is necessary to consider the offender's intention, the circumstances of the offence and to consider the circumstances of the offence, these might be aggravated if its commission took place at particularly vulnerable premises, such as a school or hospital.

7. Mitigating Factors

The magistrate considered that the defendant has made an early admission and that this was a mitigating factor. A guilty plea will be a mitigating factor depending on the time and the circumstances of the plea (PCC(S)A 2000 s152). However if the evidence is so overwhelming that the defendant has no choice but to plead guilty, there is no discount (R v Hastings 1 Cr App Rep (s) 167). We are obviously not aware of the circumstances of the plea and therefore cannot comment on whether or not this could lead to become a mitigating factor. It would be useful to have more information in this regard.

This provides a structured approach to the principle that the length of a custodial sentence should be reduced where an offender pleads guilty at an early stage in the proceedings. A guilty plea has the following benefits for victims and the criminal justice system as a whole. It:

• ensures a person who has committed an offence is sentenced without the need for a trial;
• shortens the gap between charge and sentence;
• saves victims and witnesses from the distress of having to give evidence and
• saves considerable cost.

The guideline states the purpose of the reduction, recommends a practical approach for sentencers to follow and sets out levels of reduction appropriate to the stage at which a guilty plea is entered

The good character of the defendant was taking into consideration, .i.e, the fact that the defendant had no previous conviction. Therefore here it is evident that the defendant has not previous convictions and this will be favourable to him and the outcome of his sentence.

Reparation - voluntary rectification of damage and motive are important. Therefore if the defendant makes some attempt, before his trial, to put right the damage that he has done then the court will consider this favourably when considering his sentence.

Bibliography

Cases

Elliott v C (a Minor) [1983] 2 All ER 1005

R v Caldwell [1981] 1 All ER 961

R v Hastings 1 Cr App Rep (s) 167

R v Smith [1974] 1 All ER 632

Legislation

Criminal Justice Act 2003

Powers of Criminal Courts (Sentencing) Act 2000

Criminal Damage Act 1971

Criminal Justice Act 1991

Criminal Justice Act 1993

Criminal Justice and Public Order Act 1994

Criminal Appeal Act 1995, the Crime (Sentences) Act 1997

Crime and Disorder Act 1998

Interpretation Act 1978

Human Rights Act 1998

Magistrates' Courts Act 1980

Youth Justice and Criminal Evidence Act 1999.

Government Publications

Thomas. D.A, Criminal Justice Act 1991: Custodial Sentences':1992 Criminal Law Review 232

Home Office, 1995, National Standards for the Supervision of Offenders in the Community, Home Office, London

Green Paper, 1988, Punishment and Supervision on the Community, Home Office, HMSO

White Paper, 1990, Crime, Justice and Protecting the Public, Home Office, HMSO

Journal Articles

Ashworth, A and von Hirsch A 1997 Recognising Elephant Traps: the Problem of the Custody Threshold, Criminal Law Review, pp187-200

Clarkson. C, 1997, Beyond Just Deserts: Sentencing Violent and Sexual Offenders, Howard Journal, 36(3), pp284-92

Hough. M, 1996, People Talking About Punishment, Howard Journal, 35(3), 191-214

Raynor. P,1997, Some Observations on Rehabilitation and Justice Howard Journal, 36(3), 248-62

Rex. S, 1998, Applying Desert Principles to Community Sentences: Lessons from Two Criminal justice Acts, Criminal Law Review, 381-91

Stone. N, 1992, Pre-Sentencing Reports, Culpability and the 1991 Act, Criminal Law Review, 558-67

Thomas. D.A, Criminal Justice Act 1991: Custodial Sentences' 1992 Criminal Law Review 232

Von Hirsch, A and Ashworth, A, 1996 Protective Sentencing Under Section 2(2) (b): The Criteria for Dangerousness, Criminal Law Review, pp175-83

Wasik. M and von Hirsch. A, 1994 Section 29 Revised: Previous Convictions in Sentencing, Criminal Law Review, pp 409-18

Books

Ashworth. A, 2000, Sentencing and Criminal Justice, Butterworths, 3rd edition, London

Websites

www.sentencing-guidelines.gov.uk/about/advice

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