No: 200504875/A1 
Neutral Citation Number: [2005] EWCA Crim 3429
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 25th November 2005
 
B E F O R E:

MR JUSTICE GRAY 

MRS JUSTICE DOBBS DBE 
 
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R E G I N A 

-v- 
 
ANDREW STEPHAN 

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MR L SELLICK appeared on behalf of the APPELLANT
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J U D G M E N T 

1.	MRS JUSTICE DOBBS:  On 18th July 2005 at the Truro Crown Court, this appellant pleaded guilty to ten counts of theft and was sentenced to 150 hours community punishment on each to run concurrently and made the subject of an Anti-social Behaviour order for 7 years.  He was ordered to pay £1,000 towards the costs of the prosecution. The terms of the order were as follows:  the appellant was forbidden from landing on or entering the Isles of Scilly; (ii) entering the curtilage of any dwelling house within the United Kingdom unless so invited in writing or verbally by a person authorised to give consent at that time.  He appeals against sentence by leave of the Single Judge.
2.	The facts are these.  Prior to 2004 the appellant lived on the Isles of Scilly with his wife who ran a bed and breakfast.  The appellant assisted.  He lived in a bungalow.  The bed and breakfast accommodation was in a loft conversion.  The appellant had completed the loft conversion himself in 1999 and during the course of that had built a number of access hatches into the eaves so access could be gained to storage and the pipe work.
3.	On 10th January 2004, after the appellant had separated from his wife, her new partner had a problem with the plumbing and went into the converted loft area. He removed some flooring to see if he could find the cause of the problem.  He found items of women underwear, vibrators, some pornographic magazines and photographs of various friends of the appellant's wife.
4.	Mrs Stephan looked at the photographs and recognised her friends. The police were then contacted.
5.	Mrs Stephan's partner found other items of women's underwear, videos, personal photographs and more vibrators over the next week and these were handed over to the police.  A number of ladies on the island heard about the discovery and they had to go to the police station to identity their own very personal items and the photographs.
6.	The appellant was subsequently arrested.  When interviewed he admitted stealing items of underwear from washing lines and using them as a sexual aid to masturbate.  He said he was trying to get help and that he was deeply ashamed of his actions.
7.	The appellant was born on 10th April 1963, making him 42 years of age.  He was a man of previous good character. The pre-sentence report recommended a community penalty. It said because of his good character there was a low risk of re-offending, but concern was expressed due to the nature of his offending because his motivation and thinking underpinning the offending was not understood. He seemed unaware of the impact of his offending and he believed that the offences had been blown out of all proportion.  This was not helpful to his understanding of the victims' issues.
8.	In sentencing, the judge noted that these offences had taken place over a 4 to 5 year period, which is what made them serious.  They were offences which would be particularly upsetting to those who owned the various items he had stolen.  In some instances they must have been committed in breach of specific trust vested in him by the people who were prepared to admit him in his home. They were committed in breach of general trust in the Isles of Scilly, since it was a community where people did not have to lock their doors because they trusted everyone to behave in an honourable and decent way. He had eventually pleaded guilty, so would receive some credit for that, as it meant the complainants did not have to come to court to give evidence for a second time.  He was a hard working man of good character and had been a considerate father to his elder child.
9.	The first order that was flowers from his conviction was the anti-social behaviour order which would contain the conditions which we have already alluded to.  The judge recognised the effect on this appellant of such an order would be considerable punishment.
10.	The original grounds of appeal are that in the circumstances of the case the order banning the appellant from the Isles of Scilly for 7 years was too long.   
11.	Leave was granted by the Single Judge, on the basis that (a) the Full Court should consider, whether in the light of R v Boness [2005] EWCA Crim 2395 an order should have been made against a man with the appellant's good character and (b) if appropriate, whether it is too wide and too long.  Counsel for the appellant now adopts those grounds.  He argues today before us that it was not necessary to impose such an order in this case, due to the appellant's age and his hitherto good character, saying that the deterrent factor of any further thefts of underwear in such a small community, inevitably leading to his arrest was sufficient.  Relying further on Boness, he submits that the order had been imposed by way of punishment, when clearly on the authorities it is not to be used in that way.  The purpose of the order, it was said, was to prevent the appellant from committing further thefts in the Isles of Scilly and anywhere else in the United Kingdom.  Given that this is the only behaviour complained of and the maximum sentence for theft is 7 years, then it is difficult to see what further deterrent an ASBO can have over and above the theft.
12.	We do not accept all the submissions made in the light of the particular facts of this case.  In our view, the making of an order was right in principle. We will come to the question of detail later.
13.	We deal with the facts, set against the principles one has to have in mind for the making of such an order, those principles being derived from the many authorities which now exist on the subject.  First of all, there is clear evidence that the appellant acted in an anti-social way.  Secondly, that his course of conduct had, without doubt, caused alarm and distress to those women in that small community. Thirdly, given the appellant had not clearly not yet fully got to the root of his behaviour, the imposition of the ASBO was necessary for the protection of those persons from any further anti-social behaviour on his part.  The underlying cause for the behaviour of that kind, without some kind of intervention, is not necessarily deterred by the fact of detection and prosecution, nor does the question of good character assist this aspect.
14.	We note in the pre-sentence report that the appellant is unable to accept the possible motivation for these offences, nor understand the impact of his offending on the victims. Rather, he has sought to minimise and justify his actions and indicates that he thinks things have been blown out of all proportion.  Whilst his motivation and thinking underpinning his behaviour is little understood, there continues to be concern about his re-offending.  Moreover, the behaviour to be prevented is not only theft of woman's intimate clothing or possessions but also inappropriate behaviour towards women not necessarily amounting to an offence. It is to be noted that the appellant himself admitted to the probation officer that, in relation to one of the victims, he found her to be a sympathetic listener when he shared with her some of his marital problems he was experiencing.  He conceded that the underwear might have been taken to bring him closer to her.  The order also has the added benefit of protecting those women in the Isles of Scilly from the distress and alarm of seeing the appellant and re-living the effect of his anti-social behaviour, namely the deep embarrassment and invasion of privacy that each woman must have felt.  The aim of the order therefore is not simply a matter of preventing the commission of a particular criminal offence.
15.	The real questions, in our judgment therefore, are the questions of the scope and lengths of the orders. Orders of this kind have to be proportionate, that is commensurate to the risk to be guarded against.  The appellant was given a community punishment order rather than a community rehabilitation order. Thus there has been no mandatory treatment or therapy programme that he has been subjected to.  Time must be given therefore to allow the appellant to address and manage his problem, whilst at the same time protecting certain members of the public from him.
16.	In relation to scope, we remind ourselves of the observations made by Hooper LJ in the case of Boness at paragraph 47 in which he refers to the question of policing. This is pertinent to the second half of the order which restricts entry to any curtilage of any dwelling-house in the United Kingdom without permission. The scope of this clause is very wide.  It is impracticable to police.  There is not the added concern of the women in that small community on the Isles of Scilly to consider.  It seems to us therefore that the scope of the second clause is too wide and should be deleted.
17.	We turn to the question of length.  The appellant still has family on the island.  Access to his children is restricted in any event in the light of his separation from his wife.  It seems that access now takes place on the mainland, where the appellant works.  In our judgment, the period of 7 years was too long.  The judge spoke of the effect of it as being punishment which it should not be.
18.	Doing the best we can, we think an appropriate period of restraint would be one of 2 years.  That is, bearing in mind the fact that this appellant has already been off the island for a period approaching 2 years in any event.
19.	The second clause in the order will be deleted and the period of restraint from landing or entering the Isles of Scilly will be reduced to one of 2 years.  To that extent, this appeal is allowed.