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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 >> Owen, R. v [2025] EWCA Crim 780 (01 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/780.html
Cite as: [2025] EWCA Crim 780

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It is not to be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.
Neutral Citation Number: [2025] EWCA Crim 780
Case No 2025/00713/A2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
(MR RECORDER GALLAGHER) [46XY1631324]

Royal Courts of Justice
The Strand
London
WC2A 2LL
1 May 2025

B e f o r e :


LORD JUSTICE LEWIS
MRS JUSTICE CHEEMA-GRUBB DBE
MR JUSTICE SOOLE

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REX

- v -

GARETH OWEN

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Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
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Miss C Oliver appeared on behalf of the Appellant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    Thursday 1 May 2025

    LORD JUSTICE LEWIS:

  1. On 28 January 2025, in the Crown Court at Maidstone, the appellant, Gareth Owen (then aged 43) was sentenced by Mr Recorder Gallagher for a total of 31 offences: 29 offences of theft from shops, one of theft from a person and one of theft of a bicycle. He was sentenced to concurrent terms of 32 months' imprisonment for each offence. He now appeals against sentence with the leave of the single judge.
  2. The appellant is no longer in prison and is currently on home detention curfew. He has not attended court today. That is a choice that is entirely open to him. The fact that he is not in court does not affect the outcome of his appeal. At the outset of the hearing of the appeal, we were concerned to ensure that the appellant had been informed of the hearing and that he had chosen not to attend, or that that is an inference that we could properly draw. We granted Miss Oliver, who appears on his behalf, an adjournment to take instructions. We are informed that the home detention curfew order required the appellant to be at his home address in Kent and that notification of the hearing today was sent to him at that address in Kent. Miss Oliver is satisfied that the appellant has waived his right to attend court. We accept that that is the appropriate inference from the facts with which we have been provided. We therefore proceed with the hearing of the appeal.
  3. The facts may be stated shortly. On 8 May 2024, the appellant went into the garden of a home in the early hours of the morning. He stole a bicycle worth £370. On 13 July 2024, again in the early hours of the morning, he went into the garage of another property and stole tools and alcohol. He entered the owner's work van and stole a laptop computer, a tablet and more tools. The total value of the stolen property was approximately £2,500. Between 9 May and 11 August 2024, the appellant committed 29 thefts from different shops. The total combined value of the goods stolen from all of the shops was somewhere over £2,700. The total combined value of all the goods taken in all of the thefts was well over £5,000.
  4. The appellant has 47 previous convictions for 91 offences committed between 1995 and 2024, 69 of which were for offences of theft. A pre-sentence report recorded the appellant's poor response to previous court orders. He was assessed as a high risk of re-offending. It is also fair to note that the report recorded the appellant as expressing remorse for the last 29 shop thefts and the two further thefts that he had committed. It is also right to note that he was an enhanced prisoner and that he was taking some steps whilst in prison to address his addiction to drugs.
  5. Also before the Recorder were victim impact statements from some of the victims. The person who had had property taken from his garage and his van explained how the crime had left his family feeling scared that someone would come into their home. His partner and his children jumped every time they heard a noise. Indeed, the partner had begun to look for another home. The theft had also affected his business. The person whose bicycle was stolen said that the fact that the appellant had been walking around his garden was always on his and his partner's mind. It had had an intimidating effect upon them. They had put in new security and had installed new security cameras because of the theft. He used to use his bicycle to travel to work, but can no longer do so. There were statements from the shopkeepers, some of whom ran small businesses. They explained the impact on their business, on their staff and on their customers who had to pay higher prices because of the thefts.
  6. The Recorder went through the facts of the offences, the appellant's antecedents and the victim impact statements. He considered the Sentencing Council Guidelines on Theft, but did not consider that they were of any real assistance. The guidelines dealt with what he called a "first" offence. That is not quite correct. They deal with a single offence. He said that here the court was dealing with a prolific offender with many previous convictions.
  7. The Recorder considered the various orders that had been made previously. He noted that none had worked and that the appellant had not taken advantage of any of the chances previously given to him. That is correct, but it is also fair to note that the Recorder did not mention the positive factors of the appellant addressing his addiction and the remorse that he had expressed. The Recorder concluded that there was no immediate prospect of any rehabilitation. That was a judgment open to him to reach on all the material before him.
  8. The Recorder decided to depart from the guidelines and to fix a sentence which reflected the totality of the offending. He indicated that the total appropriate sentence would be 48 months' imprisonment. A reduction of one third to reflect the early guilty pleas was appropriate and that resulted in a sentence of 32 months' imprisonment. He imposed that sentence on each of the offences, to run concurrently.
  9. Miss Oliver, on behalf of the appellant, submitted, first, that the Recorder took a starting point which was too high, principally because he had moved outside the category A1 range in the Sentencing Council Guidelines for theft from a shop. She further submitted that the Recorder had failed to have regard to mitigating factors, principally the fact that the appellant had taken steps to address his drug addiction, and his remorse. She submitted that during his time in custody the appellant had reflected and had begun to understand the consequences of his criminal activity on others; that he was striving to become drug free; and that he had taken a heroin blocker.
  10. The first question we address is whether the Recorder erred in departing from the Sentencing Council Guidelines which provided guidelines for the two offences of theft, one of the bicycle and one of theft from the garage and the van. They also provided guidelines for theft from shops. It is clear that, in applying the guideline on theft from shops, a court may aggregate the value of the goods taken where there are multiple offences of theft from shops: see R v Harvey [2020] EWCA Crim 354.
  11. Section 59 of the Sentencing Act 2020 provides that a court must follow the Sentencing Guidelines which are relevant to an offender's case unless the court is satisfied that it would be contrary to the interests of justice to do so. Here the Recorder considered that it would be contrary to the interests of justice to follow the guidelines in relation to the offences. In Harvey this court recognised that it would be permissible for a sentencing judge to depart from the guidelines because of the scale, persistence and value of shop thefts. In our judgment, the Recorder in the present case was similarly entitled to conclude that the persistent scale and value of the shop thefts (29 over a three month period) of goods valued at over £2,700, together with two other offences, including goods worth a further £2,870, meant that it would be contrary to justice to sentence each individual offence by reference to the guidelines.
  12. In our judgment, the approach that the Recorder adopted was one that in principle he was entitled to take. He decided to fix the sentence that he considered appropriate for the total offending and he imposed that sentence for each offence, but ordered the sentences to run concurrently with each other. In that way the sentence would reflect the overall offending and would not breach the guideline on totality.
  13. The real issue is whether a sentence of 48 months' imprisonment, before the reduction for the early guilty plea, was manifestly excessive. We bear in mind the fact that the Recorder did not specifically refer to the comments in the pre-sentence report about remorse and the appellant's steps taken to address his addiction. In our judgment, however, whilst this sentence was severe, it was not manifestly excessive.
  14. The thefts from shops were persistent. They occurred over a three month period. There were 29 offences of such thefts. In addition, there were the thefts from the garage and the van of goods worth £2,500, and a further theft some weeks earlier of the bicycle, worth £370 from the victim's garden. Both of those last two offences occurred in the early hours of the morning. The offences also have to be seen against the severely aggravating factor of the appellant's previous convictions which include 69 offences of theft. In all the circumstances, including those to which Miss Oliver drew attention on the appellant's behalf, a sentence of 32 months' imprisonment (that is, 48 months reduced by one third to reflect the early guilty plea), although severe, was not manifestly excessive.
  15. We would observe that, ultimately, each case depends upon its own facts. In Harvey, which involved 14 offences of theft from shops and two other offences, the court considered that a sentence of 30 months' imprisonment (that is, 45 months reduced by one third to reflect the early guilty plea) was appropriate. There are differences between that case and the present case. There were factors in Harvey, which pointed to higher culpability in respect of the shop thefts. The offender in that case sometimes stole together with a partner, and sometimes involved children in the offending.
  16. In the present case, those factors were not present. However, there were 29 offences which were committed over a three month period. In addition, there were the serious offences of theft from a garage and from a van, and the theft of a bicycle in the early hours of the morning. That offending and the thefts from shops all need to be taken into account when fixing the sentence that reflected the overall criminal offending, all of which had to be set against a background of a large number of previous convictions.
  17. What Harvey indicates, however, is that, given the scale, the persistence and the value of the goods stolen, a severe sentence for shop theft may be merited and that such a sentence would not be manifestly excessive.
  18. In our judgment, in the circumstances of this case, therefore, the sentence was not wrong in principle. Although it was severe, it was not manifestly excessive. We therefore dismiss the appeal.
  19. _________________________________

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