No: 200405447/A2-200403952/A2-200402778/A4

Neutral Citation Number: [2004] EWCA Crim 3358
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 8th December 2004

GUIDELINE COURT 
B E F O R E:

THE VICE PRESIDENT 
(LORD JUSTICE ROSE)

MR JUSTICE DOUGLAS BROWN 
 
MR JUSTICE MACKAY 
 
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R E G I N A 

-v- 

CYRIL EDWARDS PAGE 
GERRARD MARTIN MAHER 
DAVID IAN STEWART 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR J C KELLETT appeared on behalf of the APPLICANT PAGE
MR F GILBERT appeared on behalf of the APPLICANT MAHER 
MR A J WALKER appeared on behalf of the APPLICANT STEWART
MR C RODWELL, MR T STANFORD & MISS I ZIMBLER appeared on behalf 
of the CROWN 
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J U D G M E N T
1.	THE VICE PRESIDENT:  The three applicants whose cases the Court is considering were each sentenced, at least in part, for offences of what is colloquially known as shoplifting.  The cases have been heard together, with the prosecution in each case represented, so that this Court can give some guidance as to the level of sentence appropriate today in relation to shoplifting.
2.	Nothing we say is intended to affect the level of sentence appropriate for shoplifting by organised gangs.  When this occurs repeatedly or on a large scale, sentences of the order of 4 years may well be appropriate, even on a plea of guilty.  If violence is used to a shopkeeper, after theft, so a charge of robbery is inapt, a sentence in excess of 4 years is likely to be appropriate.  
3.	But shoplifting by isolated individuals, not accompanied by threats or violence, albeit a nuisance, particularly to shopkeepers, is not dangerous or frightening, nor does it, particularly when compared with many other offences, damage the confidence of the public.  Its victims are not usually particularly vulnerable by reason of age or youth.  It is also pertinent, when looking at older authorities, that by section 26(1) of the Criminal Justice Act 1991, Parliament reduced from 10 to 7 years the maximum sentence for theft convictions after 1st October 1992.
4.	Accordingly, in dealing with adult shoplifters, we suggest that sentencers bear in mind the following principles:
(i) It is a classic offence for which custody should be the sentence of last resort and will almost never be appropriate for a first offence.  In so far as older authorities (for example R v Roth 2 Cr App R(S) 65, R v Macleod 3 Cr App R(S) 247 and R v Keogh 15 Cr App R(S) 879) suggest to the contrary, they should no longer be regarded as authoritative.  It should be noted that R v Oakley 1 Cr App R(S) 366, R v Moss 8 Cr App R(S) 276, R v Goldrick 10 Cr App R(S) 346 and R v Mariconda 10 Cr App R(S) 356 all involved the aggravating feature of the use of a child in the theft.  So immediate custody was and still is merited.  A community penalty may, in some cases, be appropriate on a plea by a first-time offender, even when other adults were involved and the offence was organised: (see R v Howells [1999] 1 Cr App R(S) 335 at 340-341).
(ii) When the offence or offences are attributable to drug addiction, a Drug Treatment and Testing Order will often be appropriate in accordance with the guidance given in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R(S) 106.
(iii) A short custodial term (not more than 1 month) may be appropriate for a defendant who persistently offends on a minor scale.  If that persistence also involves preparation of equipment by the defendant to facilitate the offence, 2 months may be called for.
(iv) Even when a defendant has to be sentenced for a large number of such offences, or where he or she has a history of persistent similar offending on a significant scale, the comparative lack of seriousness of the offence and the need for proportionality between the sentence and the particular offence will, on a plea of guilty, rarely require a total sentence of more than 2 years and will often merit no more than 12 to 18 months.  It follows that R v Reeves 2 Cr App R(S) 35 should no longer be regarded as a reliable guide in relation to the total sentence appropriate for individual shoplifters.
5.	Finally, we would add that young offenders will usually be dealt with appropriately by a non-custodial penalty where there is no evidence that they are being used by adults.
6.	In the light of those considerations, we turn to the three cases before the Court.
7.	Page, who is 56 years of age, pleaded guilty before the West Norfolk Magistrates on 27th July 2004 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000, in relation to an offence of burglary and he was committed under section 6 of the same Act, in relation to offences of obtaining services by deception and theft.
8.	On 23rd August 2004, at Norwich Crown Court, he was sentenced by His Honour Judge Curl to three-and-a-half years' imprisonment for burglary and to 3 months consecutively for obtaining services by deception, and to a further 1 month consecutively for the offence of theft.  One further offence of theft was taken into consideration.  The total sentence was accordingly 3 years and 10 months' imprisonment.  His application for leave to appeal against that sentence has been referred direct to this Court by the Registrar.
9.	The relevant facts were these.  On 19th May 2004 a couple were moving into their new home in Hunstanton.  They put some of their belongings there in the morning and left the house secure at midday.  When they returned at 8.30 in the evening they found the premises had been burgled and over £4,800 worth of jewellery and other items had been taken.  Considerable damage had been caused to the house. Several windows had been attacked before entry was finally achieved by forcing a ground floor window.  The applicant's blood was found on the window sill.  When he was arrested later, he denied committing the offence, saying he had not burgled a house for years.  He could not explain the presence of his blood.
10.	On 6th July 2004 the applicant and a group of friends went to a restaurant and had a meal costing £127.  Five other members of the group left.  The applicant remained.  He told the staff that he had no money to pay.  The police were called.  He told them he had never had any intention of paying.  He was arrested.  He had just over £4 on him.  In interview he made full and frank admissions.
11.	On 18th July 2004 the applicant walked into a shop and selected a halogen oven worth just under £50 and walked out without paying for it.  He was apprehended.  The oven was recovered.  The offence of theft taken into consideration was of an iron worth just under £15, taken from the same shop on the same day.  The learned judge, in passing sentence, referred to the offence of obtaining by deception in the restaurant having been committed while the applicant was on bail.  He referred to the DNA evidence linking the applicant irrebuttably with the burglary and he referred to the applicant's record, to which, in a moment, we shall return.  The judge went on to say that the domestic burglary was serious and he referred to the amount of property taken and the substantial damage caused to the premises.
12.	The appellant, as we have said, is 56 years old.  He has a remarkable record, which includes 49 previous convictions for theft, more than 40 of those being for shoplifting and 33 for burglary.  The striking features of his record in relation to burglary are, first, its gravity - he was sentenced to 7 years in 1977, 5 years in 1981 and 7 years again in 1987 - but secondly, the fact that he has not, save in relation to the matters giving rise to his present appearance, been convicted of burglary since 1987.  He has, however, since that time, appeared regularly (several times a year, every year) for shoplifting and for occasional offences of being drunk and disorderly, malicious damage and minor violence. He has been dealt with in a variety of ways, including the imposition of fines and other modest penalties.
13.	The periods he has spent in custody in more recent times have been far modest than those in the distant past:  in 1994, he was sentenced to 4 months for theft; in 1998, to 1 month for three offences of shoplifting; in 1999, to 3 months for shoplifting; in 2002, to three weeks for shop lifting; in January 2003, to 2 months for shoplifting and driving while disqualified; in June 2003, to 14 days for shoplifting and, in January 2004, to 14 days for shoplifting.  Clearly, he can properly be described as "an habitual shoplifter".
14.	The submission which is made by Mr Kellett, on behalf of this applicant, however, is directed, understandably and primarily, to the sentence passed for the offence of burglary.  The court indicated, early in Mr Kellett's submissions, that it was sympathetic in relation to that aspect of the matter.  In our judgment, bearing in mind the very long period of time since this previously persistent burglar ceased burgling before the present offence, although the present offence was, as the judge rightly said, a serious domestic burglary, we take the view that the sentence of three-and-a-half years was excessive.  We therefore grant leave to appeal.  We quash that sentence and substitute for it a sentence of two-and-a-half years' imprisonment.  The sentences of 3 months for obtaining by deception, and 1 month for shoplifting, taking into consideration the other offence of shoplifting, will stand and, as the Crown court judge ordered, will run consecutively, that is to say, the total sentence will now be one of 2 years and 10 months' imprisonment rather than 3 years and 10 months' imprisonment.  To that extent, his appeal is allowed.
15.	We turn to the case of Maher.  He is 36 years of age.  On 12th January 2004, at West London Magistrates' Court, he pleaded guilty to a number of offences identifiable by the reference number S20040021 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 in relation to offences 1, 2, 3, 4, 6, 7 and 8, which were all offences of either theft or going equipped for theft and he was committed, under section 6 of the Bail Act 1976, for offences 5 and 9, which were of failing to surrender to bail.
16.	On 26th February 2004, at the Blackfriars Crown Court, Her Honour Judge Noels made a 2 year Drug Treatment and Testing Order in relation to those offences.  
17.	On 2nd June 2004, at West London Magistrates' Court, the applicant, Maher, pleaded guilty to two offences identifiable by the reference number S20040093.  He was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 18th June 2004, at the Blackfriars Crown Court, the applicant, having admitted being in breach of the Drug Treatment and Testing Order, made on 26th February, by failing to attend for appointments on the 8th and 12th March, he was sentenced in the following way:  in relation to the offences 0021, the Drug Treatment and Testing Order was revoked; for offence 1, which was theft, he was sentenced to 3 months' imprisonment; for offence 2, going equipped for theft, to 3 months' imprisonment concurrently; for offence 3, of theft, 3 months' imprisonment consecutively to the sentence for offence 1, and for offence 4, going equipped for theft, 3 months' imprisonment concurrently to the 3 months on offence 3. For offences 5 and 9, of failing to surrender to bail, no separate penalty was imposed.  For offence 6, going equipped for theft, he was sentenced to 3 months consecutively to the sentences passed for offences 1 and 3, and for offence 7, of theft, he was sentenced to 3 months consecutively to the sentences on offences 1, 3 and 6.  For offence 8, which was theft, he was sentenced to 3 months consecutively to all the other sentences for offences 1, 3, 6 and 7.  For breach of a 50 hour community punishment order, imposed on 20th December 2001, at West London Magistrates' Court, for going equipped for theft, he was sentenced to 3 months' imprisonment consecutively.  For the offences under reference 0093, he was sentenced to 6 months' imprisonment on each of two counts of theft, those sentences to run consecutively to the total sentences passed in relation to the eight offences dealt with under reference 0021. That total sentence, on the face of it, was one of 2 years and 6 months' imprisonment, but as the applicant had spent just over 10 weeks in custody on remand, prior to the Drug Treatment and Testing order being made, and that being a period which would not count towards serving the sentence imposed by the learned judge, she reduced the total sentence from two-and-a-half year imprisonment to 2 years and 3 months' imprisonment, without specifying any particular reduction in relation to any particular sentence.  The Registrar has referred the application for leave to appeal against sentence direct to this Court.
18.	Dealing, first, with the offences under reference 0021, and dealing with those matters chronology, on 6th June 2003 the applicant stole just over £100 worth of DVDs from Virgin Megastore (offence 8).  On 29th August, he stole three tracksuit bottoms, worth approximately £175 from the Chelsea Megastore (offence 7).  On 9th October, he stole five football shirts worth approximately £175, from a sports shop.  That was offence 3. He had with him at the time a bag lined with metal foil.  That was offence 4 of going equipped.
19.	On 18th November he again had a bag similarly lined with him.  That gave rise to offence 6.  On 9th January 2004, he stole just under £600 worth of clothing from Marks & Spencer, and at that time had with him a bag similarly lined.  That conduct gave rise to offences 1 and 2.
20.	On 13th October 2003, and again on 31st October 2003, he had been due to surrender to bail before the magistrates, but he had failed to attend and that gave rise to offences 5 and 9.  He was also, as we have indicated, by reason of the matters to which we have referred in breach of a 50 hour community punishment order imposed in December 2001, for going equipped for theft.
21.	As to the offences under reference 0093, on the afternoon of 1st April 2004, the applicant, together with a woman, was seen placing several items of meat in a shopping bag in Marks & Spencers.  The two parted.  The applicant headed for the exit.  He was stopped and asked if he was going to pay for the goods which were worth about £86. He tried to push past the manager but was restrained and detained pending arrival of the police.  When that happened, the applicant claimed that the woman he was with had been going to pay for the meat but she had left because of an argument between the two of them.  The bag was lined with silver foil, the purpose of which, of course, was to defeat the security system beyond the check-outs.  The applicant had 17 pence in his pocket.  In interview he declined to comment.  That was the first of the two offences under reference 0093.  
22.	The second occurred over a week later, on the afternoon of 9th April 2004, when the applicant went with a woman into Sainsbury's.  Neither, at that time, had anything in their hands, but, a few minutes later, the applicant was seen with a bag which seemed to have something inside.  As the two approached the exit, a security guard sought the receipt.  The applicant said he had not bought anything.  The security guard asked what was in the bag.  The applicant refused to show him and handed the bag to the woman.  The guard took hold of the applicant and the woman tipped a number of joints of meat, worth just over £30, out of the bag and ran off.  The applicant was again detained, pending arrival of the police.  Again, the bag was lined with metal foil.
23.	In interview, the applicant denied having seen the bag before and said he had gone into the supermarket to buy a newspaper.  The woman had been with him and she must have taken the meat.
24.	In passing sentence the learned judge referred to the chance offered to the applicant in the making of the Drug Treatment and Testing Order the previous February.  The applicant remained, she said, in the grip of his addiction.  But he was thoroughly dishonest and, as she described him rightly, "a public nuisance".  The judge pointed out that, although the individual offences might not seem serious in themselves, over a period of time there were losses to be borne by shops and ultimately the public bore the loss.  The time had come, she said, when he must be deprived of his liberty to protect the public for some time.  She drew attention to the fact that the vast majority of these offences were committed while on bail, and the two most recent were committed during the currency of the Drug Treatment and Testing Order.  She then proceeded to pass the sentence which we have earlier identified.
25.	The applicant has a number of previous convictions, which include four appearances for theft, for failing to surrender to bail and for going equipped for theft.  It appears that the applicant is a persistent offender but, as was pointed out on his behalf by Mr Gilbert, over a comparatively short period of time, those offences having predominantly been committed since the end of 2001.  The applicant has, save for a period of one day a decade ago, never previously served a sentence of imprisonment, nor has he previously appeared at a more exalted level than the Magistrates' Court.
26.	Before the sentencing judge, there was a pre-sentence report prepared for the February 2004 hearing, which indicated that unless the applicant was able to address his addiction to drugs, there was a high risk of him reoffending.  At that time he appeared to be genuine in his desire to address his addiction.  But subsequent reports in March and April 2004, referred to his failure, despite his genuine desire to address his addiction, to attend procedures for assessing him in connection with the order which had been made.
27.	The submission which was made, ably by Mr Gilbert, on Mr Maher's behalf was that, granted there were the aggravating features of commission of offences while on bail and while subject to the Drug Treatment and Testing Order, and some elements of planning indicated by the bag and the presence on the two later occasions of the woman, the applicant had admitted his wrongdoing at the first opportunity.  Mr Gilbert drew marked distinctions between the relative criminal history and the gravity of offending of this applicant and the appellant in Reeves 2 Cr App R(S) 35.
28.	As it seems to us, taking into account the general principles earlier rehearsed, and the particular circumstances of this applicant's history and offending, the total sentence passed upon him was excessive.  We accordingly grant leave to appeal.  Mr Gilbert, quite properly, took no exception to the imposition of consecutive sentences in relation to these offences.
29.	We take into account the fact that the appellant had served the equivalent of a 5 month sentence in the period which he had spent on remand, which would not count towards the serving of his sentence, having been served prior to the making of the Drug Treatment and Testing order.
30.	In our judgment, taking that matter into account, the total sentence which is appropriate in his case, in substitution for the total sentence passed by the learned judge, is one of 12 months' imprisonment.  That will be made up in this way:  for each of the seven offences dealt with under reference 0021, by terms of 3 months' imprisonment consecutively, that is to say, for those offences of theft and going equipped for theft, which earlier we identified, the sentence will be one of 1 month imprisonment, rather than 3 months' imprisonment, and those sentences will run consecutively to each other.  The two sentences of 6 months' imprisonment inferred under referment 0093 will be quashed and there will be substituted for them sentences of 2 months' and 3 months' imprisonment consecutively.  That 5 month total will run consecutively to the total period of 7 months imposed in relation to the offences under reference 0021. Like the sentencing judge, we impose no separate penalty in relation to the offences of failing to surrender to bail and, unlike the sentencing judge, we impose no separate penalty in relation to the breach of the community punishment order.  The total sentence therefore will be one of 12 months' imprisonment.
31.	We turn to the applicant, Stewart, who is 25 years of age.  On 25th September 2003 he pleaded guilty before the Gateshead Magistrates to offences of burglary and failing to surrender to bail, under the reference 0427.  He was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. 
32.	On 7th October 2003, at Newcastle Magistrates' Court, he pleaded guilty to offences under the reference O474 and was committed to the Crown Court in relation to the offences 1, 2 and 4 which were each of theft, under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and in relation to offence 3, which was of failing to surrender to bail, under section 6 of the Bail Act 1976.  Before Mr Recorder Worsely QC, on 29th March 2004 at Newcastle Crown Court he was sentenced, in relation to the offences under reference O427, to 3 years' imprisonment for burglary, with 3 months consecutively for failing to surrender to bail. For the offences under reference O474, he received sentences of 3 months' imprisonment concurrently in relation to each of the three offences of theft and the one offence of failure to surrender to bail.  Those total sentences of 3 months were ordered to run concurrently to the 3 years and 3 months sentence passed under reference O427.  In addition, for breach of a 12 month conditional discharge, imposed in April 2003, by the Gateshead Magistrates for theft and breach of bail, that order was revoked and a 3 month imprisonment term was imposed concurrently.  The learned Recorder took into consideration two other offences of theft.  He renews his application for leave to appeal against sentence following refusal by the Single Judge.  A co-accused, called Allen, who pleaded guilty to the burglary offence was sentenced by a different judge on 5th January 2004, to a 12 month Drug Treatment and Testing Order.
33.	The circumstances are these.  On 15th April 2003 the applicant had been sentenced to the 12 month conditional discharge to which earlier we referred. That related to the theft of goods from the CoOp on 23rd March 2003, and failing to surrender before the Magistrates on 4th April 2003. On 10th and 11th May 2003, he committed the two offences which were taken into consideration.  On 12th May 2003 he took 23 bars of chocolate from the display in a store, put them inside his coat and walked out.  He was detained.  The police were called.  He was subsequently released on bail.  Having been in court on 13th May, he then proceeded to commit other offences.  On that day, and again, on 15th May, he entered a branch of WH Smiths and took sweets and confectionary. He was stopped on 15th May by a member of staff and arrested when the police were called.  It was at that stage that he admitted the two offences taken into consideration which, as we have said, had been committed on 10th and 11th May. Furthermore, on 13th May, he committed the offence of burglary, having, as we have said, earlier been in the Magistrates' Court.
34.	The circumstances were that a woman with three young children left her flat secure and a little later one of the children, who was nine, came back to the flat for some of his belongings. As he left, the applicant and the co-accused, Allen were standing outside.  The boy had difficulty securing the front door and he sought help from the two adults.  They purported to provide it. They then escorted the boy back to his father's flat, where he was due to go.  When the mother returned to the flat, two days later, she found it had been burgled and CDs and computer games, worth something over £400 had been stolen.  There was no sign of forced entry.  CCTV footage showed two men coming out of the flat with items hidden beneath their clothing.
35.	The applicant was due to surrender to his bail before the magistrates on 4th June but he did not.  On 17th June, he was arrested. In interview he declined to comment but subsequently he was identified by the 9 year old boy.  On 5th January 2004 the applicant was due to attend the Crown Court but he failed to surrender, and a bench warrant was issued for his arrest.
36.	The learned judge, in passing sentence, referred to the shoplifting offences and the breach of conditional discharge arising from commission of the dwelling-house burglary. He referred to that as a particularly nasty offence, having taken advantage, in the circumstances which we have described, of the child.  The learned judge referred to the many occasions when the applicant had been dealt with in every conceivable way.  She said that nothing seemed to deter him from his addiction to heroin, and his consequent need to steal to feed that addiction. The learned judge then proceeded to pass the sentence to which we have earlier referred.
37.	On the applicant's behalf Mr Walker did not seek to argue disparity, when comparing the applicant's burglary sentence with that of the co-accused in relation to whom, it will be recalled, a Drug Treatment and Testing order was made.  But, submits Mr Walker, a sentence for the burglary offence of 3 years suggested that, having regard to the plea of guilty, the judge's starting point must have been too high.  Mr Walker referred to R v McInerney [2003] 2 Cr App R(S) 240 and, in particular, paragraph 32 of the judgment at page 254, and Mr Walker submitted that this was an ordinary domestic burglary which did not justify so high a starting point.
38.	True, Mr Walker conceded, this was not the applicant's first appearance for an offence of burglary.  He has one previous conviction for dwelling-house burglary, when he was 16 years old and, more recently, for burglary of premises other than a dwelling-house.  Mr Walker stresses the absence of sophistication in the offences committed by the applicant.
39.	As it seems to us, the sentence of 3 years passed in relation to the burglary, viewed in isolation, was a high one. But this Court has to address the totality of the sentence passed, by reference to the totality of offending, in determining whether or not leave to appeal should be given.  Bearing in mind not only the number of other offences, but also the fact that they were committed on certain occasions when the applicant was on bail; bearing in mind, the fact that the applicant had shown no inclination to respond to the previous leniency which had been shown to him; and bearing in mind that consecutive sentences could readily have been imposed in relation to the other offences of shoplifting and one of failing to surrender to bail, we are unpersuaded that the sentence of 3 years in relation to the burglary, to which only one of the sentences in relation to failing to surrender of 3 months was ordered to run consecutively, could be regarded as arguably excessive.  Therefore, we refuse, in Stewart's case, his application for leave to appeal. 
40.	THE VICE PRESIDENT:  Mr Gilbert and Mr Kellett, you have representation orders, have you?
41.	MR GILBERT:  Yes.
42.	THE VICE PRESIDENT:  Mr Walker, depending on how you look at it, this might be your lucky day.  Although on a renewed application of course we would not normally make a representation order, bearing in mind not only was the prosecution represented but also the nature of this morning's litigation, we shall make a representation order for counsel only in relation to Stewart.
43.	MR WALKER:  I am extremely grateful, my Lord.