England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 18th June 1998

B E F O R E :

MR JUSTICE HOLLAND

and

MR JUSTICE ASTILL

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R E G I N A

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WAYNE MICHAEL STEWART

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR N FRIDD appeared on behalf of the APPELLANT

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 18th June 1998

MR JUSTICE ASTILL: On 2nd April 1998 this appellant was sentenced after a trial to twelve months' imprisonment for an offence of theft and to a concurrent sentence of twelve months' imprisonment for an offence of going equipped for theft.

It was the early hours of the morning of 25th August 1996 that police officers saw the appellant and another man (he has since absconded and has not been brought to trial) in a van which was being driven by the appellant. The officers became aware that a telephone kiosk near to the van had been attacked and money taken from it. They noticed oxyacetylene cylinders in the rear of the appellant's van. The van was stopped and searched. That search revealed £225.50 in various coins, and the officers noticed that the nozzle of the oxyacetylene equipment was still warm. £104 had been stolen from the telephone kiosk which had been broken open. The appellant was arrested.

When he was interviewed about it, he denied theft. He said that he had been called to a breakdown but that, when he arrived, no one was there. He said that the equipment was his but had not been used that day; and that he had changed the nozzle and tested it about an hour before his arrest. It was that unlikely story that the jury clearly rejected.

The appellant was sentenced on what the sentencing judge called "overwhelming evidence of carefully planned offences to break into telephone kiosks and steal money". He made the obvious point that no credit could be given for a plea of guilty.

There were reports before the court, which set out domestic and personal difficulties suffered by this appellant, and the judge expressly took those into account.

In the view of this Court, he rightly took the view that offences of this kind are serious and justified the passing of an immediate custodial sentence.

This appellant has previous convictions: three for handling stolen goods and two for theft.

The grounds of appeal, advanced succinctly by Mr Fridd, are threefold: that having regard to the cases of R v Arslan (1993) 15 Cr App R (S) 90; R v Costello (1993) 15 Cr App R (S) 24; and R v Ferry and Wynn [1997] 2 Cr App R (S) 42, this sentence of twelve months was too long. The second point that Mr Fridd makes is that the domestic difficulties and the depression set out in the reports were not reflected or reflected sufficiently in the sentence passed. The third point he makes on behalf of the appellant is that the gap between the offence and the sentence and the progress meanwhile were matters that properly could reduce the length of the sentence.

In Ferry and Wynn the appellants were sentenced on the basis that they were involved in, as the Court called it, "a sustained enterprise to break into telephone boxes in rural areas". Those appellants pleaded guilty. The position here, as is obvious from the facts, was that this appellant went out with another to break into a telephone box, and in the car was found cash in small denominations which went beyond the amount that had been taken from that box. There was no other report, it is true, that any other box had been broken into by him, but the facts of the matter show that this appellant and his companion went out in the early hours of the morning equipped to commit precisely this kind of offence.

It is in these circumstances that we come to consider whether the facts of this case and the facts of Ferry and Wynn can be distinguished so as to enable this Court to consider a sentence appropriate of less than the twelve month sentence that was passed.

We are unable to accept the submission that this sentence was too long. This appellant, against overwhelming evidence, contested the matter. The appellants in Ferry and Wynn did not. The facts of this case show that this appellant with his companion went out equipped to break into this telephone box and in the car was found in denominations of a similar kind that could come from another telephone box.

In all the circumstances, and bearing in mind that in Ferry and Wynn the Court was upholding a sentence and not suggesting that twelve months was the appropriate tariff, we have come to the conclusion that this sentence cannot be said to be manifestly excessive. Accordingly, this appeal must be dismissed.