Burke, R v

Neutral Citation Number: [2017] EWCA 848 (Crim) IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2017/0541/A2 Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 June 2017 B e f o r e: LORD JUSTICE HICKINBOTTOM MR JUSTICE HOLROYDE THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A MARK BURKE - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R KatZ (Solicitor Advocate) appeared on behalf of the Applicant Mr D Bush appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE HOLROYDE: On 17th November 2016 the Central London Magistrates' Court committed this applicant, Mark Burke, to the Crown Court at Southwark for sentence for a total of 16 offences set out in five separate memoranda of committal: 13 offences of thefts from shops, two offences of breach of a Criminal Behaviour Order and one offence of failing to surrender to bail. On 12th January 2017 in the Crown Court at Southwark, the applicant was sentenced to concurrent terms of 30 months' imprisonment for each of the offences of theft, with no separate penalty being imposed for any of the other three offences. Thus his total sentence was 30 months' imprisonment. He seeks to appeal against that total sentence on the grounds that it is manifestly excessive. The Registrar of Criminal Appeals noted that a number of the individual sentences imposed in the Crown Court appeared to be in excess of the court's powers. He therefore referred the application for leave to appeal against sentence to the full court. We are grateful to counsel Mr Katz on behalf of the applicant and Mr Bush on behalf of the respondent for the assistance they have given to the court. In particular we are grateful to Mr Bush for his help in untangling the confusing picture presented by the paperwork, a topic to which we shall return shortly, and to Mr Katz for his sensible focus on the substantial issue in the case. The relevant facts can be summarised very briefly. As will be seen, what should have been a straightforward application for leave to appeal has regrettably become unnecessarily complicated as a result of deficiencies in the memoranda drafted at the Magistrates' Court. The applicant is now 45 years old. For more than 20 years he has been misusing controlled drugs and has funded his drug taking by stealing from shops. He has a dreadful record of offending. Prior to these offences he had been sentenced on 80 separate occasions for a total of 165 offences. 136 of those were offences of dishonesty (almost all of them being thefts from shops) and many of the other offences involved failures to surrender to bail or failures to comply with court orders. The applicant has been made subject to a variety of forms of sentence, none of which have successfully deterred him from further offending. It is sufficient for present purposes to summarise the most recent appearances before these latest offences. In November 2015, for a number of offences of theft from shops, the applicant was made subject to suspended sentences of imprisonment together with a supervision order and a drug rehabilitation requirement. He did not comply with the requirements of the suspended sentence order and soon committed further similar offences. As a result, at a series of court appearances in March, May and June 2016 the suspended sentences were brought into effect and further consecutive terms of imprisonment were imposed. The exact date of the applicant's release from those sentences is not known, but it can only have been a very short time before he committed the present offences. The present offences, all of which the applicant admitted at the first opportunity, include one of theft on 18th March 2016 which pre-dated his last prison sentence. The other 12 offences of theft were committed later in 2016: on 27th July, 31st July, 2nd August, 18th August, 19th August, 21st August, 24th August, 3rd September, 8th September and 13th October. All of the offences were committed in a wholly unsophisticated manner. The applicant repeatedly walked into shops in the West End of London, took goods which were on display (usually clothing or accessories) and walked out. The aggregate value of the property stolen in the 13 offences was around £3,000. It is unnecessary to go into the details of the individual offences but it is necessary to highlight certain features of the chronology of the offending. First, the applicant must have been on licence from his last prison sentence when he committed these offences. Secondly, on 8th August 2016 he appeared before a Magistrates' Court for two of the present offences and admitted his guilt. The court deferred sentence for three months to see if he could keep out of trouble, comply with the requirements of the probation service and seek voluntary help to address his drug misuse. The applicant committed his next offence of theft only 10 days into that three month period of deferment. Then on 28th September the applicant again appeared before a Magistrates' Court in relation to some of the offences. Proceedings were adjourned until 19th October with a view to obtaining a drug rehabilitation assessment. The court on that occasion warned the applicant that he would face a long prison sentence if he continued to offend. Also on 28th September the Magistrates' Court made a Criminal Behaviour Order, the effect of which was to exclude the applicant from a specified area of the West End of London. The obvious purpose of that order was to keep him away from the shops in which he habitually stole. Within little more than a fortnight the applicant twice breached that order by entering the designated area. He then committed the last three of the present offences of theft. He failed to surrender to his bail on 19th October. He also failed to attend an appointment with the probation service which had been arranged in order to prepare a pre-sentence report. On 17th November 2016, as we have said, the applicant was committed to the Crown Court for sentence. The various memoranda record some of the committals as having been made pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and others as having been made pursuant to section 6 of that Act. Where an offender is committed for sentence pursuant to section 3, the Crown Court has the power to sentence him as if he had been convicted on indictment. Committal under section 6 however limits the Crown Court to the powers which would have been available to the Magistrates' Court. It should be noted that the memorandum of committal 20160286, which relates to the latest offences in time, recorded the following reasons for committing the applicant for sentence: "Insufficient powers. Horrendous record; offended on bail, on licence. You are a one man crime wave. Time has come to send you to the Crown Court." It is therefore clear that the Magistrates' Court regarded the offending as calling for punishment in excess of its own powers. We consider later in this judgment whether the memoranda of committal correctly recorded the manner in which the magistrates gave effect to that intention. When the applicant appeared before the Crown Court, the learned judge was assisted by a pre-sentence report and a drug rehabilitation assessment. In summary, those documents showed that there was some indication that the applicant was showing an interest in receiving help to address his drug misuse, but that the risk of his re-offending in a similar fashion remained high. Submissions were made on the applicant's behalf to the effect that the court should deal with the offences by a form of penalty other than immediate imprisonment, with provision for the applicant to receive drug treatment. Those submissions were rejected by the learned judge on the grounds that the applicant had already been given many chances in the past, none of which had prevented his further offending. The judge referred to him as a prolific offender. Giving credit for the guilty pleas and taking account of totality, the judge imposed concurrent sentences of 30 months' imprisonment for each offence of theft and imposed no separate penalty either for the breaches of the Criminal Behaviour Order or for the failure to surrender to bail. In his written grounds of appeal, Mr Katz contended that the total sentence was manifestly excessive in length for offences which involved neither planning or preparation, nor the use of any device intended to evade detection. In the written grounds it was suggested that the judge had wrongly failed to give sufficient weight to the arguments in favour of a suspended sentence. But realistically Mr Katz has not pursued that point in his oral submissions to us today. It is clearly not possible to criticise the judge for concluding, against the background which we have summarised, that this course of yet further offending was so serious that nothing other than immediate imprisonment would suffice. As to the length of the prison sentence, Mr Katz placed reliance on certain observations of Rose LJ giving the judgment of this court in Page [2004] EWCA Crim. 3358. No point was raised in the written grounds of appeal as to the terms of the various memoranda of committal. Notwithstanding the reasons for committal which we have quoted above, the various memoranda record only four offences in respect of which the court is said to have committed pursuant to section 3 of the 2000 Act: offences of theft on 18th March and 8th September 2016 and the two offences of breach of the Criminal Behaviour Order. On behalf of the prosecution, Mr Bush submits that most if not all of the other offences of theft should also have been committed pursuant to section 3 and that the committals recorded in the memoranda as being pursuant to section 6 of the 2000 Act should not have been made pursuant to that section. Theft is an either-way offence. However, by section 22A(1) of the Magistrates' Courts Act 1980 "low-value shoplifting is triable only summarily". In order to ascertain the meaning of “low-value shoplifting”, it is necessary to look to subsections (3) and (4) of section 22A which are in the following terms: "(3) 'Low-value shoplifting' means an offence under section 1 of the Theft Act 1968 in circumstances where- (a) the value of the stolen goods does not exceed £200 (b) the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and (c) at the time of the offence, the person accused of low-value shoplifting was, or was purporting to be, a customer or potential customer of the person offering the goods for sale. (4) For the purposes of subsection 3(a)- (a) the value of the stolen goods is the price at which they were being offered for sale at the time of the offence, and (b) where the accused is charged on the same occasion with two or more offences of low-value shoplifting, the reference to the value involved has effect as if it were a reference to the aggregate of the values involved." It should be noted that the three criteria stated in section 22A(3) are cumulative. An offence is only an offence of low-value shoplifting if all three of those criteria are satisfied. In relation to the first of the three criteria, the value of the stolen goods, it is necessary in the circumstances of this case to have regard to section 22A(4)(b). That provision plainly applies to several of the committals for sentence in this case. For example, committal S20160281 relates to six offences of theft, all of which were charged on the same occasion. Four of the charges state values in excess of £200. The remaining two state values of £200 and £130 respectively. Yet the memorandum shows all six offences as having been committed pursuant to section 6. Similarly, the memorandum of committal S20160311 lists two offences of theft: one relating to goods valued at £126 is said to have been committed pursuant to section 3, whilst the other, relating to goods valued at £251, is said to have been committed pursuant to section 6. The latter offence plainly should have been shown as being a committal under section 3. Given the statement of reasons for committal which we have quoted, we are satisfied that it cannot be the case that the Magistrates' Court acted in complete error as to its powers. Rather, it is in our view clear that the memoranda of committal are in a number of respects defective and fail accurately to record the power actually exercised by the court. The defects in the memoranda have regrettably made the task of the courts far more complicated than it should have been. It is to be hoped that if nothing else this case serves to underline the importance in circumstances such as these of section 22A(4)(b). For offences charged on the same occasion to have been recorded (as was the case here) in separate memoranda of committal is positively unhelpful. We fully recognise the pressure of work on the Magistrates' Court, but we note that the confusion engendered by setting out charges laid on the same date in a separate memoranda of committal may well have contributed to the clerical errors in recording the statutory powers which were exercised may well have been contributed to by the confusion engendered by setting out charges laid on the same date in separate memoranda of committal. Be that as it may, the question we have to consider is whether clerical errors and defects prevent the sentencing court from acting in accordance with the obvious intention of the committing court. The decision of this court in Ayham [2012] 1 Cr. App. R 27 show that they do not. In that case a constitution of this court, headed by Lord Judge, CJ, considered previous decisions as to the validity of committals for sentence and concluded that "the essential question is not what power a memorandum of conviction records the Justices to have used, but the power they actually used." The court went on at paragraph 18 of the judgment to affirm earlier decisions to the effect that the correct approach is "... to examine the question whether the magistrates' court was vested with the necessary jurisdiction to commit to the Crown Court. If it was then an omission from or an inaccuracy in the memorandum of conviction about the statutory powers which were exercised or which were available to be exercised did not affect the validity of the committal." Applying those principles to the present case, we are satisfied that only three of the offences of theft could properly have been committed to the Crown Court pursuant to section 6 of the 2000 Act. These were S20160282 charge 2, which was not "charged on the same occasion" as any other offence; and S20160283 charges 1 and 2, where no value at all was stated for the goods stolen and it does not seem to us to be possible on the evidence before the court to draw any sure conclusion as to their value. In relation to each of those three offences the sentencing power of the Crown Court was limited to a maximum of six months' imprisonment. It follows that the concurrent sentences of 30 months' imprisonment for those three offences were unlawful and must be quashed. In relation to the other 10 offences of theft however, we are satisfied, having regard to section 22A(4)(b) of the 1980 Act, that the Magistrates' Court had no power to treat any of them as a summary-only offence and did not purport to do so, and that the memoranda of committal are deficient in wrongly recording those committals as being made pursuant to section 6 rather than section 3 of the 2000 Act. We can now turn to the merits of Mr Katz's core submission that the total sentence was manifestly excessive in length. Courts must now follow the Sentencing Council's definitive guideline on sentencing in theft cases, which have been in effect since February 2016. Mr Katz therefore cannot derive any assistance as to the level of sentence from the earlier case of Page. Nor, as it seems to us, is he assisted by another case on which he relied in his written grounds Anderson [2014] EWCA Crim. 797. We have considered the sentencing guideline. We have also considered the recent decision of a constitution of this court in Chamberlain [2017] 1 Cr. App. R (S) 46 which confirmed that a significant custodial sentence may sometimes be appropriate, even for relatively minor offences, if committed by a persistent offender in respect of whom other forms of sentence have been exhausted, but which also emphasised that the sentence imposed must nonetheless be proportionate to the offending. We take the view that the majority of the offences of theft come within culpability Category B. The offences committed on 13th October 2016 come within culpability Category A because by that date the applicant was subject in effect to a banning order from the shops concerned. The harm category of the individual offences would be either Category 2 or Category 3, according to the value involved. It is however important to bear in mind that the sentencing guideline specifically refers to the possibility that consecutive sentences may be appropriate. In principle that is the case here. The guideline also makes specific reference to the aggravating feature of relevant previous convictions which may justify a court imposing a sentence above the category range. That too is plainly a relevant consideration in the present case. There are here also the further aggravating features of offending on bail and offending on licence. Although the applicant was plainly entitled to full credit for his prompt admissions of guilt, it seems to us that no personal mitigation is available to him. It does not appear that he had taken any real steps to address his long-term drug problem. In all the circumstances the learned judge was entirely justified in taking a serious view of this further course of offending by a prolific thief. A substantial total sentence was plainly required and was consistent with the proper application of the sentencing guidelines. However, section 153(2) of the Criminal Justice Act 2003 requires that any custodial sentence must be for the shortest term commensurate with the seriousness of the offending concerned. Serious though these offences were, particularly having regard to the applicant's dreadful record, they were unsophisticated thefts, not accompanied by any form of deception and not accompanied by any form of violent, threatening or disorderly behaviour. The total sentence of 30 months' imprisonment implies a total sentence after trial of 45 months. In our judgment that was manifestly excessive. We take the view that the appropriate total sentence after a trial would have been one of three years' imprisonment. It follows that in our judgment the appropriate sentence, giving credit for the guilty pleas, is one of two years' imprisonment. For those reasons we grant leave to appeal and we grant the appeal to the extent of reducing the total term of imprisonment to one of two years. We achieve that result in the following way. On each of the six offences under committal S20160281, we quash the sentences of 30 months and substitute concurrent sentences of two years. On committal S20160282, we quash the sentences of 30 months' imprisonment imposed below. On charge 1 we substitute a sentence of two years' imprisonment and on charge 2 we substitute a sentence of four months' imprisonment. As before there will be no separate penalty on charge 3. On committal S20160283, we quash the sentences of 30 months' imprisonment and impose on each of charges 1 and 2 concurrent sentences of four months' imprisonment. On committal S20160286, we quash the sentence of 30 months' imprisonment imposed below on charge 1 and substitute a sentence of two years' imprisonment. As before, there will be no separate penalty on charges 2 and 3. Finally, on committal S20160311 we quash the sentence of 30 months' imprisonment imposed below and on each of charges 1 and 2 we substitute concurrent sentences of two years' imprisonment. All of these sentences will run concurrently, making the total of two years' imprisonment to which we have referred. LORD JUSTICE KICKINBOTTOM: Mr Burke, as you have heard the consequence of that is that your aggregate sentence will be reduced from 30 months to two years.