England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 July 2017

1. MR JUSTICE SWEENEY: This is an appeal against sentence by leave of the single judge. On 6 February 2017 in the Crown Court at York, the Appellant, who is now aged 26, pleaded guilty to three offences of theft (Counts 1 to 3) and was sentenced by His Honour Judge Paul Worsley QC sitting as a Deputy Circuit Judge to 18 months' imprisonment concurrent on Counts 1 and 2 and 27 months' imprisonment concurrent on Count 3, making a total of 27 months' imprisonment.
2. Although she was separately indicted, there was a co-defendant, the Appellant's partner, Kimberley Newton, now aged 27, who pleaded guilty to four offences of theft, one of which was the same offence as the one to which the appellant had pleaded guilty in his Count 2. Her plea of not guilty to the offence to which the Appellant had pleaded guilty in his Count 3 was accepted. She was sentenced to a total of 16 months' imprisonment for the thefts and to three months' imprisonment consecutive for the breach of a conditional discharge for other offences of theft and common assault, making a total sentence in her case of 19 months' imprisonment.
3. In the period between 2004 and 2015 the Appellant appeared before the courts on 34 occasions for 65 offences. Thirty-four of those offences were offences of theft and the like, including 19 offences of shoplifting. His other offences included fraud, handling stolen goods, assaults, battery, criminal damage, aggravated vehicle taking and numerous breaches of court orders.
4. The shoplifting offences began in 2009 and were initially punished by community penalties or suspended sentences with which the Appellant failed to comply. In early 2012 he was sentenced to one month's imprisonment for a single such offence, and later in that year to eight months' imprisonment suspended for 18 months for three such offences and other offences. In 2013 for two such offences he was sentenced to a total of 28 days' imprisonment. In May 2014 for a single offence he was conditionally discharged. In July 2014 for two offences and for breach of the conditional discharge he was originally made the subject of a community order. In September 2014 for three offences he was sentenced to a total of 28 days' imprisonment suspended for six months. In January 2015 for five offences, for breach of the community orders imposed in July 2014 and for breach of the orders imposed in September 2014, he was sentenced to a total of 15 months' imprisonment.
5. For her part, Newton had appeared before the courts on 25 occasions in the period between 2011 and 2016 for a total of 36 offences of which 18 were shoplifting. In March 2016 she was given the two year conditional discharge for shoplifting and common assault to which we have already made reference.
6. The facts of the offences in short are these. On 5 August 2016 the Appellant went to the Sainsbury's supermarket in Ripon, removed the security tag from a tablet computer and left with it. His commission of the offence was revealed by later examination of CCTV footage. That was Count 1.
7. Count 2 involved both offenders who, on 15 October 2016, went into Sainsbury's in Harrogate, interfered with the security tag on a box containing a vacuum cleaner worth some £350 and left with it.
8. The events in relation to Count 3 took place on 9 November 2016 when the Appellant and a female entered an Asda store in York and put three flat screen televisions worth in total £753 into a trolley and walked out with it. This time however an alarm went off and staff were able to retrieve the trolley and its contents, albeit only after a confrontation by the Appellant. The Appellant and the female made off in a motorcar.
9. The total value of the goods stolen in the Appellant's case was therefore a little over £1,200 of which £753 worth was recovered.
10. The other matters for which Newton were sentenced were that on 13 October 2015 (i.e. two days before her joint offence with the Appellant at Sainsbury's in York) she entered that same store and stole bottles of alcohol, including champagne. On 18 October 2015 (i.e. three days after the joint offence) she returned to the same store and stole three vacuum cleaners and three jackets. Finally, on 15 December 2016 she stole perfume from a Brown's store, although that was recovered. The total value of the goods stolen in her case was a little over £3,100; £348 worth of which appears to have been recovered.
11. There was no pre-sentence report before the court below, but such was in our view unnecessary both then and now.
12. In passing sentence, the judge observed that the Appellant had been committing shoplifting offences since 2009. The court, he said, had tried community sentences, suspended sentences and sentences of immediate imprisonment but none had worked and shopkeepers now deserved a degree of protection from the Appellant who was a professional shoplifter. Giving 25 per cent credit for plea, the judge thus imposed the sentences to which we have already referred.
13. In Newton's case the judge observed that she had been involved in shoplifting since 2011 and that every conceivable sentence had been tried in her case too, but none had worked. She too, he said, fell to be sentenced as a professional shoplifter from whom shopkeepers deserved a degree of protection. Giving full credit for plea in her case, the judge then imposed the sentences upon her to which we have already referred.
14. The single judge granted leave upon the basis that it was arguable that the sentences imposed upon the Appellant were, in themselves, manifestly excessive and that the sentencing judge had failed to supply an adequate justification for his departure from the Definitive Guideline.
15. On the Appellant's behalf, Mr Blatchford indicated that he sought to renew a further Ground of Appeal, namely that there was an unfair disparity via the sentence imposed on the co-defendant.
16. Mr Blatchford variously submitted that a discount of 25 per cent for credit was appropriate; that the appellant had not acted professionally as a shoplifter because he had demonstrated no expertise, had carried no special equipment and so forth, and that therefore it was inappropriate that the judge had referred to his professionalism; that the highest value offence (Count 3) fell into Category 2A in the Guideline and thus attracted a starting point of 12 weeks and a range of up to 26 weeks; that adding in the other two offences should not have taken the sentence outside that range; and that even if such addition took the offending into Category 1A, it did not take it effectively to the maximum in that bracket. Even considering the appellant's record, Mr Blatchford submitted, it was not such as to take sentence to the level of the notional sentence after trial which the judge indicated.
17. Mr Blatchford submitted that assistance was to be found in the recent case of Chamberlin 2017 EWCA Crim 39. That case was not drawn to the attention of the judge because it had been too recently decided. Mr Blatchford pointed out that in that case the offender, who was a persistent offender who showed signs of professionalism in the conduct of her shoplifting, committed a Category 3A offence which, we interpolate, therefore carried a starting point of a high level community order and a range from a low level community order to 12 weeks' custody.
18. In the light of Chamberlin's record, the judge, after giving full credit for plea imposed a sentence of two years' imprisonment. This Court, as Mr Blatchford pointed out, having given general guidance on the requisite approach to persistent offenders, concluded that the appropriate sentence after trial in Chamberlin's case was one of 12 months' custody – i.e. in a case where a non-custodial disposal was the starting point, and the maximum in the relevant range was 12 weeks, identified a sentence after trial which was more than four times the maximum sentence in the range for the offence taken in isolation. Less full discount for plea, that resulted in a sentence of nine months' imprisonment.
19. In all those circumstances, and given for example that the Appellant made no attempt to disguise himself, Mr Blatchford submitted that there was simply no sufficient justification for the judge to have departed from the Guideline to the extent that it is submitted that he did.
20. For our part, we observe that it has long been recognised that in the case of an offender with a bad record, who has demonstrated an inability or an unwillingness to rehabilitate themselves by their repeated failure to respond to previous sentences, the sentencing judge may be entitled not just to depart, but to depart radically, from the relevant Guideline, by putting the need to protect the public first. Modern examples of the re-statement of that principle include Marcantonio [2012] EWCA Crim 1279.
21. We have no doubt that this enormously experienced judge had that principle in mind when he explained, clearly in our view, why he was sentencing outside the normal range. Equally, his reference to the Appellant being a professional shoplifter was plainly intended to reflect the fact that the Appellant was funding his lifestyle by repeated offences of shoplifting, rather than suggesting that the way that the Appellant went about his offences showed particular expertise.
22. The Guideline in relation to theft from shops which came into force in February 2016 deals at page 13 with statutory aggravating factors, and in particular previous convictions, in the following terms:

"Relevant recent convictions may justify an upward adjustment, including outside the category range. In cases involving significant persistent offending, the community and custodial thresholds may be crossed even though the offence otherwise warrants a lesser sentence. Any custodial sentence must be kept to the necessary minimum."

In Chamberlin, the Court, having referred to that passage, indicated that it was therefore clear that sentencers may, in the light of previous convictions, depart from the level of sentence indicated by the Guideline, that it is a matter for the judge in the individual case to consider which of the purposes of sentence should carry greater weight, and that in the case of a persistent offender, with whom custodial methods have been tried and failed and where there is no current prospect of steps designed to reform or rehabilitate the offender being effective, punishment and deterrence may justifiably come to the fore. However, it is not inevitable that the sentence must be longer than the last sentence imposed and the sentence length must be proportionate to the offence itself, aggravated as it is by the previous convictions.

23. In this case the notional sentences after trial that the judge clearly had in mind in relation to Counts 1 to 3 were respectively two years, two years and three years. Bearing the principles that we have identified in mind, the fact that the calculation of the appropriate sentence is not simply a mathematical exercise, and the need for the sentence to be kept to the necessary minimum, it seems to us that the period of three years on Count 3 was too long and that the notional sentence after trial in relation to that offence should have been one of 30 months, then discounted by one-quarter to reflect the guilty plea and rounded down to a sentence of 22 months' imprisonment, concurrent to the other terms imposed.
24. It is in that light that we now consider the disparity argument. In our view, there is nothing in it.
25. Accordingly, for the reasons that we have indicated, we quash the sentence on Count 3 and substitute for it a sentence of 22 months' imprisonment, concurrent to the sentences imposed on Counts 1 and 2, meaning that the total sentence is reduced to one of 22 months' imprisonment. To that extent this appeal is allowed.
26. MR BLATCHFORD: My Lord, may I raise the matter of costs?
27. MR JUSTICE SWEENEY: Yes, what are you asking us to do?
28. MR BLATCHFORD: There is a summary of costs.
29. MR JUSTICE SWEENEY: We have seen that.
30. MR BLATCHFORD: According to the regulations, my Lord, as the judge giving the judgment, you are to determine whether the estimate is to be paid or not.
31. MR JUSTICE SWEENEY: Right. You had better take us through the amounts, please.
32. MR BLATCHFORD: Certainly, my Lord. It was just the Court of Appeal office came through and I checked the regulations and was told to bring it with me. I have never done it before. In terms of the document itself, as you can see my Lord, although I was the original instructing advocate I never had any conduct of this case, it was Mr James Bruce who dealt with Mr Brooks on this matter. There is a summary in the box giving the total time of work, travel time and also this hearing of 17 hours.
33. MR JUSTICE SWEENEY: We will retire briefly to discuss this.
(Short adjournment)
34. MR JUSTICE SWEENEY: If the point is whether the number of hours and figures set out are reasonable, then the court thinks that they are.
35. MR BLATCHFORD: I am grateful, my Lord.