England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 2nd April 2009

1. MR JUSTICE SWEENEY: This is an appeal against sentence, with leave of the single judge. On 9th February 2009 in the Crown Court at Southwark, the appellant pleaded guilty, on rearraignment, to an offence of theft. The following day he was sentenced by Mr Recorder Etherington QC to 18 months' imprisonment, less 132 days spent in custody on remand.
2. The facts of the offence can be shortly stated. At about 7.00 pm on 2nd July 2008 the victim, Mrs Henley, was waiting on a platform at the Kings Cross Underground Station. She had a bag over her shoulder and a picture under her right arm. As she boarded the tube train she felt someone push against her from behind and heard a voice say "sorry" but did not see where it came from. As the train departed she sat down. She then noticed that her purse had been taken from her shoulder bag. The purse contained a driving licence, an NHS identity card, a debit card, a credit card, a store card, correspondence, photographs and £20 in cash. None of the property was ever recovered.
3. The appellant was identified from CCTV footage. He was arrested on 29th September 2008. When interviewed he made no comment. He was committed in custody to the Crown Court at Southwark on 29th October 2008. There was a PCMH on 3rd December 2008. At that stage the Crown had not served any CCTV evidence, and failed to do so within the time limit then imposed by the court. Nevertheless, on 12th January 2009 a defence case statement was served in which the appellant denied the offence. The CCTV material was eventually served in mid to late January 2009. It was viewed by the appellant on 27th January 2009 and, no doubt appreciating its overwhelming nature, it was immediately after that that he indicated an intention to plead guilty.
4. The appellant was born on 8th August 1962 and is therefore now aged 46. He has 22 previous convictions for 41 offences. These include convictions for robbery, theft from the person and attempted theft from the person. They also include an offence of attempted murder for which he was sentenced to 15 years' imprisonment in 1993, being released in July 2002, together with other offences of violence. There was no pre-sentence report before the learned Recorder, but a letter from the appellant expressed his remorse. After being released from prison in July 2002 he had tried to turn his life around. He had made mistakes which had been domestic related, and more recently drug related. He had moved to London, but had problems with housing benefit and had thus returned to drug use. He had fallen out with his family. He had later reconciled with his partner, and she had helped him to contact various agencies to help with his drug problem. He had been arrested 3 months after the offence, by which time he said that he had overcome his problems, and had returned to Manchester.
5. In passing sentence the learned Recorder indicated that account was taken of the mitigation advanced by counsel, the appellant's letter, and documents before the court which showed that he had made very good progress with his drug problem. The principal submission was that the offence was in a sense opportunistic, with only a degree of planning at the last minute. It was committed because of dire financial need. He had been arrested after, ironically, he had started to put his life back in order.
6. The learned Recorder took account of the Sentencing Guidelines Council guidelines on theft from the person. He indicated that the stills from the CCTV footage showed a degree of professionalism.
7. The learned Recorder had difficulty with the appellant's expression of remorse. He had said nothing to the police, and he had waited to see what evidence had come up before eventually deciding to plead guilty. It was undoubtedly a late plea influenced by what the appellant had seen in the CCTV footage. Nevertheless, some credit for his plea would be given.
8. The learned Recorder reflected on the fact that offences like this harmed people's confidence in travelling on public transport, and the loss of items such as bank cards caused enormous inconvenience. The loss of personal possessions like photographs was less easily categorised, but could cause hurt which could not necessarily be put right nor photographs replaced. Crucially, the learned Recorder reached the conclusion that the appellant had targeted a vulnerable person. He had targeted Mrs Henley because she had a shoulder bag, and because a woman was less likely to give him trouble. He tracked his victim, and the dipping into her bag was professionally done. It had taken place at a vulnerable place. All travellers on a busy Underground station being vulnerable to this type of crime. Therefore, in the learned Recorder's view, a degree of deterrence was required to discourage people from behaving as the appellant had done. It was thus that the learned Recorder concluded that a custodial sentence was required, and that according to the guideline as he applied it, the starting point was 12 months' imprisonment. The aggravating features, in particular the appellant's very poor record, and the particular inconvenience to the victim via the type of article stolen, increased that starting point by a further 9 months to 21 months' imprisonment. The only mitigation was the late plea for which, given that it was tendered in the face of what turned out to be overwhelming evidence, there would be a discount in the order of 14 per cent. It was in those circumstances that the learned Recorder passed the sentence to which we have already made reference.
9. A prison report before this court indicates that after a difficult start the appellant is making reasonable progress.
10. Miss Ramez argues that the sentence was manifestly excessive, that the judge was wrong to conclude that the complainant was vulnerable, that the initial starting point should be less than 12 months' imprisonment, and that the level of inconvenience and that the applicant's antecedents did not warrant an additional 9 months' imprisonment. Insufficient regard, she argues, was had to the Sentencing Guidelines Council guidance on theft from the person, to the applicant's personal mitigation and to the guilty plea. In particular she argues that:

(i) The victim was not vulnerable in the terms of the guidelines, she was simply an easy target because she was carrying a shoulder back.

(ii) This case fell within the bottom category of the guideline relating to theft from the person and thus required, as a starting point, a medium community order with an overall range from a fine to 18 weeks custody.

(iii) As to the other aggravating features relied upon by the learned Recorder, any resultant inconvenience was limited, it not being a case involving the theft of household or car keys, a mobile telephone, diaries and so forth, and too much weight was put on the appellant's previous convictions, not least given that his last conviction for theft was in 1988, and his last offence of dishonesty was in 1992.

11. In our view, in accordance with the guidelines on theft, the primary factor in considering sentence is the seriousness of the offence, which is determined by assessing the culpability of the offender and any harm which the offence caused, was intended to cause, or might foreseeably have caused (see paragraph B5 at page 3). As theft is an offence of dishonesty the offender is to be regarded as having demonstrated a high level of culpability, albeit that the precise level of that culpability will vary according to features such as motivation, whether the offence was planned or spontaneous and so forth (see paragraphs B6 and 7 at page 3). The sentencing starting points and ranges in relation to theft are based on the assumption that the offender was motivated by greed and/or a desire to live beyond his means (see paragraph B8 at page 3). Paragraph D at page 8 headed "Sentencing ranges and starting points" provides as follows:

"1. Typically, a guideline will apply to an offence that can be committed in a variety of circumstances with different levels of seriousness. It will apply to a first time offender who has been convicted after a trial ...

2. As an aid to consistency of approach, the guidelines describe a number of types of activity which would fall within the broad definition of the offence. These are set out in a column headed 'type/nature of activity'.

3. The expected approach is for a court to identify the description that most nearly matches the particular facts of the offence for which the sentence is being imposed. This will identify a starting point from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence (beyond those contained within the column describing the type or nature of offence activity) to reach a provisional sentence.

4. The sentencing range is the bracket into which the provisional sentence will normally fall after having regard to factors which aggravate or mitigate the seriousness of the offence. The particular circumstances may, however, make it appropriate that the provisional sentence falls outside the range.

5. Where the offender has previous convictions which aggravate the seriousness of the current offence, that may take the provisional sentence beyond the range given particularly where there are significant other aggravating factors present.

6. Once the provisional sentence has been identified by reference to those factors affecting the seriousness of the offence, the court will take into account any relevant factors of personal mitigation, which may take a sentence beyond the range given.

7. Where there has been a guilty plea, any reduction attributable to that plea will be applied to the sentence at this stage. Again, this reduction may take the sentence below the range provided.

8. The court must give its reasons for imposing a sentence of a different kind or outside the range provided in the guidelines."

Page 9 of the guidelines sets out the decision-making process in a way which is intended to require the structured exercise of discretion.

12. The section specifically concerned with theft from a person is at pages 14 to 15 of the guideline. Paragraph 1 at page 14 makes clear the starting points in sentencing ranges in the table at page 15 relate to first-time adult offender convicted after a trial. Paragraph 2 at page 14 indicates that theft from the person encompasses conduct such as pick-pocketing. Paragraph 7 at page 15 further indicates in relation to pickpocketing that the need for deterrent element in such cases, previously identified in this court in cases such as R v Spencer and Carby (1995) 16 Cr App R(S) 482 is already taken into account in the guidelines. Paragraph 3 at page 14 defines a 'vulnerable victim' as:

"...a person targeted by the offender because it is anticipated that he or she is unlikely or unable to resist the theft. Young or elderly persons or those with disabilities may fall into this category. The exploitation of a vulnerable victim indicates a high level of culpability and will influence the category of seriousness into which the offence falls."

By paragraph 6 at page 14, when assessing the seriousness of an offence, the court must always have regard to the guideline entitled "Overarching Principles: Seriousness" reproduced in annex A, along with additional aggravating features such as.

(i) evidence of planning (paragraph 2 at page 14)

(ii) the use of force short of robbery (paragraph 6 (ii) at page 14)

(iii) a high level of inconvenience caused to the victim by theft of items such as credit cards (paragraph 6(iv) at page 14).

12. In this case, the critical decision in identifying the correct starting point was whether Mrs Henley was, in the terms of paragraph 3 at page 14 of the guideline, "a vulnerable victim". The learned Recorder decided that she was. In our view he was wrong. Mrs Henley was targeted because she was carrying a bag which enabled the appellant to effect the theft without her realising in time, not because she was of an age, or suffering from a disability, that made her unlikely or unable to resist the theft.
13. Accordingly the description in the table at page 15 that most nearly matches the facts of this case is the bottom level of "theft from the person not involving a vulnerable victim." This level involves a starting point of a medium level community order with a range from a fine to 18 weeks in custody. However, in this case, there were a number of, in our view, grave aggravating features, namely:

(i) the offence was clearly planned and, as the photographs from the CCTV footage show, carried out in a highly professional manner.

(ii) it involved the use of force (the push) short of robbery.

(iii) it involved a high level of inconvenience to the victim, who lost, amongst other things, a credit card and a debit card.

(iv) the appellant had a number of previous convictions for theft and attempted theft from the person, albeit their aggravation is tempered by the fact that they were committed many years ago.

(v) More importantly, the appellant has, in the terms of Annex A plainly failed to respond to his most recent sentences. Be it 15 years for attempted murder in 1993 the conditional discharge imposed on him in 2005, 12 months' imprisonment imposed on him in 2006, or the 5 months' imprisonment imposed on him earlier in 2008.

14. The combination of all these aggravating features is so serious that in our view and as the guidelines recognise may be the case, they take this offence out of the lower bracket on page 15 and well into the bracket above it. Indeed, in our view, to the top of the range in that bracket, namely a provisional sentence of 12 months' imprisonment. There was, in our view, no mitigation available to the appellant beyond his last minute plea. We shall apply roughly the same percentage discount that the learned Recorder did, rounded down with a further and favourable allowance to the appellant. That gives a total sentence of 10 months' imprisonment, less the 132 days spent on remand. To that extent this appeal is allowed.
15. LORD JUSTICE DYSON: Thank you Miss Ramez. I know that I cut you rather short, but I should have said that we have been very greatly assisted by your excellent advice on appeal against sentence.
16. MISS RAMEZ: I am grateful your Lordships. Thank you.