Karimu, R. v

Neutral Citation Number: [2017] EWCA Crim 1719 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 201702861/A 2 Royal Courts of Justice Strand London, WC2A 2LL B e f o r e: Date: Tuesday, 17 October 2017 LADY JUSTICE SHARP DBE MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v ANTHONY KARIMU - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr D O'Donoghue appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE JEREMY BAKER: On 8 June of 2017 in the Crown Court at Blackfriars Anthony Karimu was convicted of an offence of theft in respect of which the trial judge imposed a fine of £1,600 and the victim surcharge of £120. The fine was ordered to be paid within 3 months with 28 days' imprisonment in default. 2. 3. 4. 5. 6. 7. 8. 9. The appellant appeals against sentence with the permission of the single judge. The circumstances giving rise to the conviction are that on 3 February 2016 the appellant was observed on closed circuit television at Boots the Chemist in St Pancras International Station placing various footcare products into a plastic bag. He walked out of the shop without paying and was stopped outside by the store's assistant manager. He was arrested by the police and found to have taken items from the store worth £111.85. On his first appearance at the magistrates' court he elected trial and at one of the pre-trial hearings before the crown court misbehaved to the extent that he was ordered to be detained in the cells for a period of about four hours. The appellant had a number of previous convictions for offences of dishonesty including burglary, theft, handling and obtaining by deception for which he had been dealt with in a variety of ways including custody. However, his last conviction involving dishonesty was in 1986. In his sentencing remarks the trial judge stated that: "You've taken this jury's time for two days, deciding unanimously on something that it seems to me was screamingly obvious on the screen." The judge indicated that he would impose a fine upon the appellant and said that as the criminal justice system costs money "if you want to use it and you're convicted, you've got to pay for it". He said that after taking into account the one day which the appellant had spent in the cells, he would reduce the fine to that imposed upon him. 10. We understand from Mr O'Donoghue, who appears on behalf of the appellant, that the prosecution accepted that this was a category C3 case within the Sentencing Guidelines, such that the relevant starting point was a Band A fine with a range of between a discharge and a Band B fine. 11. There was evidence before the judge that the appellant was in receipt of state benefits, albeit he had given evidence in the trial that he had £150 cash on him at the time of the offence and that earlier that day had purchased a MacBook Air with his savings of £5,000. 12. It is pointed out by Mr O'Donoghue that the Magistrates' Court Sentencing Guidelines assessment of fines indicates that an offender whose primary source of income is state benefits will be considered to have a weekly income of about £120. On this basis a Band A fine would equate to a starting point of £60 with a range of between £30 and £90. 13. It is submitted that the fine imposed in this case is significantly outside the guidelines and that, in any event, it was wrong for the judge to increase the fine to take into account the fact that the appellant had elected trial by jury. 14. We have some sympathy with the concerns of the trial judge that in view of the apparently clear evidence from the CCTV footage the appellant had not only embarked on a trial but did so in front of a jury with all of the attendant costs which this entailed to the public purse. 15. However, although it may have been appropriate to have reflected part of this concern when considering any application for prosecution costs, it ought not to have been reflected in an increase in the fine imposed. 16. Moreover, even if it was appropriate to take some cognisance of the appellant's savings when considering his means, we do not consider this would have justified the fine which was imposed in this case. 17. In these circumstances we consider the appropriate fine in this case, bearing in mind the means of the appellant, should have been one of £90. As we have decided to reduce the amount of the fine, we are entitled to consider whether the appellant ought to pay some contribution towards the prosecution in order to compensate them for avoidable expense. That is in line with what was said generally in this court by the then Lord Chief Justice in Northallerton Magistrates' Court Ex p. Dove [2001] Cr. App. R. (S) 136 and indeed is reflected in the Magistrates' Court Sentencing Guidelines assessments and fines whereby it is clear that for a person with a very low income if there are sufficient savings they can be properly taken into account. As we understand it, the current savings at the time of the trial, so far as the appellant was concerned, was some £2,000. 18. Bearing in mind all of those matters, what we intend to do is to impose an order that the appellant pay the prosecution costs limited to the sum of £500. 19. In the event, we will quash the present fine and term in default and substitute a fine of £90. This will be ordered to be paid within 28 days or 14 days in default and in addition the appellant will be ordered to contribute to the costs of the prosecution in the sum of £500. To that extent the appeal is allowed. 20. THE REGISTRAR: My Lord, does the Victim Surcharge Order remain the same? 21. MR JUSTICE JEREMY BAKER: The Victim Surcharge Order remains, yes. 22. THE REGISTRAR: Thank you, my Lord. SMITH BERNAL WORDWAVE