England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4th March 2014

1. MR JUSTICE SWEENEY: This is an appeal against sentence by leave of the single judge.
2. On 16 January 2014 in the Crown Court at Northampton the appellants, who are respectively aged 18 and 19, pleaded guilty to a single offence of theft. On 7 February 2014 they were sentenced by His Honour Judge Bray as follows. McDonagh, 8 months' detention in a young offender institution and a victim surcharge order of £100. Lawrence, 10 months' detention in a young offender institution and a victim surcharge order in the sum of £100.
3. The facts, in short, are these. On the night of 21 August 2013 the appellants went out together in a Vauxhall Vectra car looking for parked lorries from which to steal diesel fuel. For that purpose they had with them in the car thirteen 25 litre containers, plastic gloves and two screwdrivers, the latter intended for use in forcing fuel tank caps.
4. The appellants went to the area of the lorry park at the Leicester Forest East Services where, at around 11.50 pm, they were seen to be acting suspiciously. They then went to a layby on the eastbound side of the A14 where four lorries had parked up for the night. The driver of one of those lorries was Steven McSkimming who was deeply asleep in his cab. The appellants forced the fuel gap on his lorry and removed diesel from it with a value in the order of £150 to £180.
5. However, police officers driving past at shortly before 1.00 am saw the Vauxhall Vectra and stopped. They found clear signs that the victim's lorry had been attacked and diesel removed. They also heard noises from the adjacent woods to which the appellants had fled. A police helicopter was summoned to track them down and they were eventually arrested, about a mile away, with McDonagh saying that they had been in a field having a picnic. The fuel, gloves and screwdrivers were all recovered and the Vectra was seized. Neither appellant made any comment in subsequent interview.
6. As to their backgrounds, McDonagh has no previous convictions. He does have a warning for another type of offence which, like the judge, we ignore. A pre-sentence report in his case indicated that he accepted full responsibility for his offending. He claimed that it was his co-accused's idea but accepted that he was fully aware that what they were doing was wrong. He said that he regretted his actions. He was apprehensive of custody because of the impact on his mother, as he assisted her with the care of his younger brothers and sisters. In the author's opinion there was a low risk of reconviction and the appellant presented a low risk of harm to the public. In view of the fact that he was working and thus unable to comply with an unpaid work requirement and unwilling to comply with a curfew requirement, a financial penalty was proposed.
7. Lawrence had a caution which was imposed on 26th November 2012 for making off without payment and theft from a vehicle, and a previous conviction on 24th June 2013for an offence of fraud. The pre-sentence report in his case indicated that he did not accept responsibility for his offending and nor was he aware of the impact of his behaviour on the victim. There was however, in the author's view, a low risk of reconviction and the author pointed out that he had no record of violence. The author opined however that there were concerns about the appellant's ability to cope in custody; he was anxious about the possibility of custody but adamant that he did not wish to engage with community supervision - albeit that he was willing to carry out unpaid work. In Lawrence's case therefore a community order with unpaid work was proposed.
8. In his short sentencing remarks the judge indicated that credit was given for the appellant's guilty pleas albeit that they had had no choice but to plead guilty - given that they were caught red handed by the police. It was, said the judge, a planned professional crime, in which they acted together. He observed that the appellants were equipped with numerous 25 litres cans, screwdrivers and pairs of plastic gloves. Offences of this kind upon commercial lorries on the A14, he said, were very prevalent and thus there had to be deterrent sentences. Taking account of the respective backgrounds of the appellants, he thus imposed the sentences to which we have already made reference.
9. A number of grounds of appeal are advanced. In relation to McDonagh:

(i) insufficient weight was given to the appellant's age and lack of previous convictions;

(ii) insufficient weight was given to the guilty plea and the fact that the pre-sentence report assessed there being a low risk of re-offending;

(iii) the judge erred in not indicating during mitigation that the custody threshold had been passed. He allowed himself to be influenced by his opinion that this type of offence was prevalent and that it was necessary therefore to pass deterrent sentences. This was important as there was no suggestion that the appellant had been involved in similar offences before;

(iv) insufficient weight was given to the appellant's expressed recognition of his offending and that whilst he allowed himself to be recruited, he accepted fully his responsibilities for his actions and did not seek to blame others;

(v) insufficient weight was given to the appellant's naiveté expressed in the pre-sentence report as regards the potential sentence;

(vi) the sentence was manifestly excessive.

10. In so far as Lawrence is concerned there are three grounds as follows:

(i) the facts of the case did not warrant an immediate custodial sentence;

(ii) discretion ought to have been exercised and a non-custodial sentence imposed given that the circumstances of the case arguably fell outside of the Definitive Guideline on theft;

(iii) insufficient credit was given for the guilty plea at an early opportunity.

11. Clearly, in the particular circumstances of this case it would have been better if the judge had specifically indicated to defence counsel that he was considering an immediate custodial sentence. In any event he should undoubtedly have given counsel the opportunity to deal with the possibility of a deterrent sentence. Had he done so, no doubt counsel would have reminded him of R v Oosthuizen [2006] 1 Cr App R(S) 73, in which this court made clear that judicial experience alone is an insufficient basis upon which to depart from Sentencing Guidelines on the basis of local prevalence. Proper evidence is required before that can be done.
12. On the other hand, this was clearly a case in which the judge was entitled to take the view that the case against the appellants was overwhelming and thus to reduce the discount for plea, which we presume he did, to one of 20%. Equally, he was entitled to pass a somewhat longer sentence on Lawrence because of his caution and previous conviction.
13. All that said, the sentences imposed were clearly too long and must be quashed. There were however a number of aggravating features in relation to the appellants' culpability. The offence was planned. It was committed at night. There were two offenders. The victim was vulnerable because he was known to be asleep and was deliberately targeted. On the other hand, the value of the stolen property was relatively modest at £150 to £180 worth of diesel fuel. Whilst both defendants are young and neither had been in custody before and whilst there is an element of being on the cusp in this case, it does seem to us nevertheless that the judge was entitled to impose a custodial sentence.
14. In our view, the correct sentences, reflecting the aggravating and mitigating features and the correct percentage of discount for plea is in McDonagh's case one of 2 months' detention in a young offender institution and in Lawrence's case one of 3 months' detention in a young offender institution. In each case, because of the reduction in term, there must also be a reduction in the victim surcharge order to £80. Therefore we allow the appeal, we substitute the sentences that we have indicated and we reduce the victim surcharge orders as we have indicated. To that extent each appeal is allowed.