England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 July 2018

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LORD JUSTICE SIMON:

1. On 5 June 2018, the appellant, who had previously pleaded guilty to a single offence of theft before the magistrates, was sentenced by His Honour Judge Berlin at Wolverhampton Crown Court to a term of 20 months' imprisonment. He appeals against that sentence with the leave of the single judge.
2. The appellant was employed by Caretech Community Services. One of their clients was a young man with learning difficulties, Kyle Griffiths. He did not go out after 6.00 pm and when he did so he was always assisted. The role of Caretech was to help him and to make his life as independent as possible, particularly in relation to financial management. As an employee of Caretech, one of the appellant's tasks was to accompany Mr Griffiths to his bank or a cash point and assist him with the withdrawal of money. Caretech operated a system whereby a log was kept of any money that was withdrawn so there was an audit trail for the cash.
3. In November 2016, it came to their attention that there had been unauthorised withdrawals from Mr Griffiths' account. These had been made after 6.00 pm and so could not have been made by him. It was discovered that the unauthorised withdrawals made between April 2015 and February 2016 amounted to £3,140.
4. The appellant was interviewed on 8 May 2017 and admitted what he had done. He told the police that he had a cocaine habit which had left him with debt problems. He said that the withdrawals had usually been about £150 at a time and that he either did not record the withdrawals or he recorded a lower amount.
5. There was a victim personal statement from Sheryl Tombs, an employee of Caretech, in which she said that she had suspected another member of staff as being involved, as that person had worked most of the same shifts as the appellant when the thefts had occurred. She said that she felt sad for Kyle Griffiths as he had trusted the appellant and they had a good bond.
6. The appellant is aged 26 and was of previous good character. There was a pre-sentence report which referred to his explanation that he had committed the thefts because he had developed a cocaine addiction and could see no alternative way of repaying his debt other than to steal money from Mr Griffiths. At the time of the offence the report recorded the appellant was in an abusive domestic relationship and there were also difficulties with Mr Griffiths in respect of which the appellant felt he was not getting sufficient assistance from Caretech. He expressed remorse for his crime. The author of the report proposed a community order with a rehabilitation activity requirement. The appellant was described as also suitable for unpaid work and curfew requirements. There were in addition references before the sentencing judge, which we have seen, that referred to the appellant's good qualities.
7. In passing sentence, the judge noted that the appellant had pleaded guilty at the earliest possible opportunity to theft over a 10-month period from a vulnerable adult aged 35. The judge noted that the appellant had set out to steal from his victim in what he described as an utterly wicked and systematic way. The judge accepted that the probation service said that this was partly based on resentment of Mr Griffiths' treatment of him and further based on his cocaine problem borne out of depression. However, the offence was based on greed and the greed took hold to the extent that he took almost half of the income of a vulnerable adult every month for a period of 10 months. It was a grotesque breach of trust.
8. The judge went on to describe the crime as sophisticated in the sense that the appellant on three or four occasions altered the figures to show that he had taken a lesser sum than in fact he had taken. On other occasions he did not bother doing that and just took the money. The appellant was able to gain Mr Griffiths' trust because of the nature of the person he was dealing with and he knew that. He was able to use the victim's bank card and PIN number because they were readily available for him to use when he helped Mr Griffiths to remove money from his account lawfully.
9. In mitigation, the judge accepted the appellant's remorse and that he had been depressed but that had to be balanced against judge's public duty. The crime was, in his view, high culpability, category A, within the guidelines because there was a high degree of trust which the appellant breached in respect of a vulnerable adult. As to harm, whilst this was medium value theft, to someone of that vulnerability living in the way that he was, receiving £700 a money in benefits, the appellant was taking almost half of that for himself over a 10-month period. That was a significant additional harm factor. The offending therefore fell squarely within category 2A, which had a starting point of 2 years with a range of 1 to 3 years. The judge then said this at page 3:

I bear in mind that you have no previous convictions, and the other matters that have been urged upon me. But for this matter, the aggravating features bring this to thirty months as my starting point, taking account of those matters.

10. The judge did not elaborate on what those matters were. He then gave full credit and passed the sentence of 20 months' imprisonment. He recognised the significance of the Imposition of Community and Custodial Sentencing guideline but found that the appropriate punishment for this type of offence could only be achieved by immediate custody.
11. Mr Cadwaladr, who appears for the appellant, makes a number of points, but two of them form the basis of the present application. First, he submits it was wrong to place the offending within category 2A of the theft guidelines; the offence should have been placed within category 3A in view of the amount that was stolen: more than £500 but less than £10,000. The provision of the victim's needs, he submits, was not affected by the theft, and he appears to have been unaware of it.
12. Secondly, he submits that the judge was wrong to take a starting point of 30 months rather than 2 years which is the prescribed starting point for a category 2A offence. Thirdly, he urges that insufficient regard was given to the mitigating factors, including the appellant's good character, and, fourthly, that insufficient regard was given to the recommendation in the pre-sentence report. He submits that the sentence should have been suspended. There had been 2 years between his offending and sentence. He had not offended in that time and had addressed his addiction problem and found new work.
13. In our view, the judge was right to treat this as a serious offence of theft. It was theft by someone who was trusted to care for a vulnerable client and abused that trust. It is the type of crime that undermines trust in those who give devoted care to vulnerable people and who do not succumb to temptation, and it tends to have a wider effect on public confidence in the care system. It may also result, as in this case, in suspicion being cast on those who are entirely innocent. We do not accept that this was an offence that could be properly dealt with by a non-custodial sentence. The judge rightly regarded this as a category A offence because of the breach of trust.
14. The first issue that arises is whether he was right to characterise the offending as category 2 medium harm because there was additional harm due to the appellant taking half of the victim's £700 per month.
15. We accept that what may be a relatively small amount to one person will seem a large amount to another and there is no reason to think that the victim here could easily bear a loss of £3,140 or forgo half of his entitlement. But in the present case, it mattered little whether this fell within category 2A of the guidelines within a starting point of 2 years, or category 3A with a starting point of 1 year's custody and a category range up to 2 years, if the features identified by the judge justified starting at the top of the range.
16. However, instead of taking a starting point of 2 years, the judge adopted a starting point of 30 months because of the unidentified aggravating matters. In our view, the appropriate sentence before giving credit for the plea and one that took into account the mitigating factors to which we have referred was a term of 21 months, that mitigation being his good character and clear remorse, and with full credit for the plea the sentence should have been a term of 14 months' immediate imprisonment.
17. Accordingly, we quash the term of 20 months and substitute a term of 14 months' imprisonment.
18. To that extent, the appeal is allowed.