England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 18 January 2017

LORD JUSTICE TREACY:

1. This appellant pleaded guilty in the Crown Court at Woolwich on 23 September 2016. On the same day she was sentenced to a term of 2 years' imprisonment for an offence of attempted theft. The single judge has granted leave.
2. The facts show that on 20 August 2016 the appellant went to the changing rooms of a shop in Lewisham. She took a number of items of clothing into the changing room and concealed them in her bag before leaving. Staff were suspicious and stopped the appellant. The items were hidden in her bag with their price tags covered in foil so as to prevent detection by security sensors. When the police were called the appellant declined to answer questions then or later in interview. The value of the goods taken was £78.
3. The appellant was 44 years old. She had been convicted in the past for over 100 offences. About 80 of those offences are thefts. The appellant has run the gamut of all sorts of community disposals, as well as short prison sentences.
4. Since the beginning of 2015 the appellant's record shows convictions. In January 2015, for shoplifting, she was dealt with by way of a fine. On that occasion a foil bag was used to defeat security. In April 2015 two offences of shoplifting committed on bail, together with a breach of a community order and possession of a Class A drug, were dealt with by a community order which included a drug rehabilitation requirement. In June 2015 the appellant was given a suspended sentence of 12 weeks for shoplifting. In April 2016 she was dealt with for yet more shoplifting and for going equipped for theft, and sentenced to 8 weeks' imprisonment with 8 weeks of the suspended sentence which had been breached being implemented concurrently. In July 2016 she was back before the court for possession of cannabis and failing to attend a drug assessment. She was fined. On 30 August 2016, about a week after the commission of this offence, she was sentenced to 4 months' imprisonment for a separate theft, involving theft from the person. She was serving that sentence when she was dealt with for the present matter.
5. The present offence was said to have been committed whilst the appellant was under the influence of drugs. She has been a drug abuser during her criminal career. No doubt this has provided the motivation for much of her offending. This offence was committed whilst on bail. There was no pre-sentence report before the judge, but he was told and accepted that this offender whilst in custody had recently been moved from a prescription for methadone to one for Subutex. It was asserted that this was of assistance to Miss Chamberlin and that she would on release have the support of her family, a factor which had not always been present in her history.
6. The judge considered the decision of this court in R v Thomas [2013] 2 Cr App R (S) 86 and concluded that the time had come for the appellant "to understand the consequences of her actions". A lengthy sentence was required because the appellant had not responded to the sentences which she had received in the past.
7. The appellant had elected trial at the Crown Court. She pleaded guilty on her first appearance there. The judge gave her full credit for her plea as an act of mercy, notwithstanding the election. For the same reasons the sentence imposed was ordered to run concurrently to the existing 4-month term.
8. The grounds of appeal assert that the sentence imposed was manifestly excessive. Firstly, regard should have been paid to the fact that section 22A of the Magistrates' Courts Act 1980 provides that, for low-value shoplifting (£200 or less), the offence is to be treated as a summary offence with a maximum of 6 months. That provision was inserted into the 1980 Act by section 176(3) of the Anti-social Behaviour, Crime and Policing Act 2014. Secondly, this offender had pleaded guilty to an attempt rather than the completed offence. Thirdly, the judge had paid too much regard to Thomas and insufficient regard to the prospect of rehabilitation in the case. In any event, the sentence was disproportionately long.
9. We deal first with the point relating to section 22A. That provision is, by virtue of section 22A(2), not applicable where an adult offender elects a Crown Court trial, as occurred in this case. Parliament has expressly provided that the limitation for low-value shoplifting does not apply, so that the Crown Court is constrained only by sentencing guidelines and the statutory maximum of 7 years.
10. Section 176(5) of the 2014 Act amends section 1 of the Criminal Attempts Act 1981, so that section 22A, limiting sentence in low-value shoplifting cases, also applies to attempts.
11. We see scant mitigation in the fact that an attempt was admitted in this case. The matter could in fact have been charged as the complete offence, but in any event the fact that the matter was treated as an attempt was entirely due to the actions and diligence of shop staff, after the appellant had done all she could to commit the offence.
12. The decision in Thomas did not involve an instance of theft by shoplifting; it involved a theft from a person. The new provision, if in force, would not have applied. Nonetheless, Thomas was an illustration of circumstances in which this court held that a significant custodial sentence may be justified for a relatively minor offence where the offence is committed by a persistent offender with whom other avenues of sentencing have previously been unsuccessfully pursued. Thomas is not a guideline case, and in any event the Sentencing Council has subsequently given guidance regarding theft offences.
13. This guidance came into force on 1 February 2016. There is a specific guideline dealing with theft from a shop which refers to the statutory maximum of 7 years, subject to the exception where low-value shoplifting is dealt with as a summary offence under section 22A.
14. In our judgment, the case falls into high culpability within the guideline by reason of significant planning and sophistication evidenced by the use of foil to defeat security. As far as harm is concerned, the case falls into category 3, since the value of the goods was less than £200 and there was no additional harm to the victim, the goods having been recovered. For a category 3A offence, a starting point of a high-level community order is shown with a range from a low-level community order to 12 weeks' custody.
15. On the face of things, therefore, the sentence imposed here greatly exceeded the indicated range and starting point. However, the guideline goes on to give specific guidance relating to previous convictions. It begins by identifying relevant previous convictions as being an aggravating factor and goes on to state:

"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."

16. It is therefore clear that sentencers may, in the light of previous convictions, depart from the level of sentence initially indicated by the guideline. We do not consider tha, in the case of low-value shoplifting, the Crown Court after election for trial is bound by the 6-month summary maximum. Where there has been previous relevant persistent offending and custody is appropriate, the court should apply the principles set out in the guideline.
17. The court is also reminded by the guideline to consider alternative disposals where appropriate. For example, where an offender has a propensity to misuse drugs and there is a sufficient prospect of success, a community order with a drug rehabilitation requirement may be a proper alternative to a short or moderate custodial sentence.
18. All of this guidance is consistent with a number of provisions in the Criminal Justice Act 2003. Section 142(1) sets out a number of purposes of sentencing to which a court must have regard; namely, the punishment of offenders, the prevention of crime (including reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to those affected by their offences. Not all of those purposes point in the same direction. It must be a matter for the judge in the individual case to consider which purpose or purposes should carry greater weight. In the context of a persistent offender, with whom non-custodial methods have been tried and failed, and where there is no current prospect of steps designed to reform and rehabilitate being effective, punishment and deterrence may justifiably come to the fore.
19. Section 143(2) provides that, in considering the seriousness of an offence, the court must treat each previous conviction as an aggravating factor if it can reasonably be so treated. Again, if an offence is committed while the offender was on bail, that too must be treated as an aggravating factor (see section 143(3)). Both of these provisions apply in the present case.
20. Section 152(2) provides that a court must not pass a custodial sentence unless it is of the opinion that the offence or offences associated with it were so serious that neither a fine nor a community sentence can be justified. Clearly section 143 is a relevant consideration in this context.
21. Section 153(2) provides that any custodial sentence must be for the shortest term commensurate with the seriousness of the offence.
22. Where the offending is of a relatively minor nature, as in the case of low-level shoplifting, a custodial sentence must be a measure of last resort, after a fine or a community order or other non-custodial disposal has been rejected. A suspended sentence should only be imposed if the court would otherwise have imposed an immediate term of custody.
23. For an offence of this nature, custody would ordinarily be inappropriate. It is only the persistence of this offender's offending and the failure of other measures, including a community order with a drug rehabilitation requirement, which in our view justifies a custodial term in this case. We do not consider that the assertion of grounds for optimism made by counsel below, at a time when the appellant was already serving a custodial sentence, is sufficient to show that some constructive alternative course to custody was available. We suspect that in the past similar good intentions have been expressed without avail.
24. There was no pre-sentence report available to the court below. We have asked for updated information. The current position is as follows. The appellant has behaved in a satisfactory and co-operative manner in custody and is completing a course relating to victim awareness. No specific comment has been made regarding attitude to drug-taking or offending after release. There is no suggestion of drug abuse whilst in custody. This offender is, of course, receiving a form of drug substitute. We have additionally been provided with a pre-sentence report dating back to late 2014, which provides relevant background about this offender. The assessment of her position in late 2014 is not of relevance to her present situation, since much water has gone under the bridge in her life since then.
25. We want to emphasise, as the guideline does, that the fact that there has been previous diversionary work with an offender which sought to prevent or reduce continued offending does not necessarily, if unsuccessful, preclude the court from considering that kind of option again if appropriate in the circumstances. The time for focusing on that matter must be at the time of sentence for the current offence when the court can assess the prospects of whether, for example, a community order with a drug rehabilitation requirement carries a sufficient prospect of success so as to represent a proper alternative to a custodial sentence. If a custodial sentence has to be imposed, then it should bear a degree of proportionality to the offence committed, albeit in the context of its aggravation by persistent offending after exhaustion of other options.
26. It does not follow that in every case of this kind the custodial sentence must inevitably be longer than the longest previous sentence imposed for similar offending. In many classes of case this will be the result of an application of an appropriate guideline, but there is no rule or guideline which requires this. In cases of this kind where punishment is the prime purpose of the sentence, further offences may result in further sentences of similar terms. The previous offending requires a custodial sentence where otherwise none would have been imposed. The sentence length must be proportionate to the offence itself, aggravated as it is by the previous convictions.
27. Although we have held that in a case such as this the Crown Court is not limited to a maximum of 6 months' imprisonment, we consider that the steer, recently given by Parliament where custody is to be imposed, is relevant in dealing with a low-value, prolific, non-violent individual shoplifter such as this appellant. The maximum level for the matter dealt with summarily does, in our view, provide assistance in fixing a proportionate sentence which does not exceed the necessary minimum. It is hard to envisage that in most such cases a sentence of more than 12 months before credit for plea will be appropriate. That is not to set a 12-month norm in these cases; each case must be decided on its merits, and many cases may result in a lesser starting point if custody is found to be appropriate.
28. As is plain from the foregoing, we are not persuaded that the judge was in error in passing a custodial sentence given the history of the matter, the absence of any realistic prospect for a rehabilitative disposal at the time of sentence and the fact that the offender was already serving a term of custody. We do not, however, think that in this case a sentence of 2 years after full credit for plea represented a keeping of the sentence to the necessary minimum as required by the guideline. We remind ourselves that the top end of the relevant range in the guideline was 12 weeks' imprisonment. In our judgment, the judge's starting point of 3 years was too high. We think that 12 months was appropriate.
29. Giving 25 per cent credit for the guilty plea, since we consider that the rationale for the generously merciful full credit granted by the judge no longer applies, we substitute a term of 9 months for the 2 years imposed below. To that extent, this appeal is allowed.