On 6 October 2015, the Sentencing Council continued its ongoing rollout and review of sentencing guidelines with the publication of the new Definitive Guideline for Theft Offences. The new Guideline applies for all adult offender sentenced on or after 1 February 2016, regardless of the date of the offence, or the date of conviction. The Overarching Principles – Sentencing Youths Guideline still applies and should continue to be used for those defendants aged 17 or under. The Definitive Guideline was published following a consultation period that began in April 2015, and it is fair to say that they largely mirror the draft that was put out for consultation. A slight simplification of the assessment of harm process marks the only amendment of any substance that followed the consultation period. Once again the consultation process has amounted to little more than a rubber stamping of the Sentencing Council’s draft.
The various Theft Acts have created some of the most common offences on the criminal calendar; in 2014 more than 91,000 such offences came before the courts of England and Wales. Therefore the new Guideline will necessarily be a vital tool, regularly relied upon, by those of us in criminal practice. Further, it is clear that theft offences, whilst often not grave viewed individually, have a major impact upon the economy. British Retail Consortium research showed that the the direct cost of retail crime rose to in excess of £603 million in 2013/14, a rise of 18% on the previous 12 month period. The average value of of each theft in-store rose over the same period 36% to a, slightly surprising, £241 per incident. Irrespective of those figures, the stated intention of the Sentencing Council was not to change the overall sentencing levels from those that were already in place. Rather, the intention was, “to provide a comprehensive guidance and introduce a standard approach to sentencing, ensuring that certain factors are always taken into account.” Despite those reassuring words from the Council, the new Guideline has been very much welcomed by those organisations and bodies who represent companies and individuals who are habitually victims of crimes of dishonesty. The Association of Convenience Stores, The National Association of Business Crime Partnership and the Country Land and Business Association are but a sample of the organisations who have issued press releases praising the new Guideline and its focus on victim impact. This glowing praise from retail groups should sound an appropriate note of caution to those defendants hoping that there is to be no inflation in sentencing practice to follow from the implementation of the new Guideline. It is noteworthy, however, that the Sentencing Council did resist calls from the retail industry to create a separate table for repeat offenders, which no doubt would have meant a significant inflationary effect on sentencing levels.
The most noticeable change in form in the new Guideline as compared with the Theft and Burglary of Non-Dwelling House Guideline, that previously covered many of these offences, is the expansion in the number of categories set out within the Guideline covering different types of offending. The Guideline represents the first time that practitioners and courts have had the benefit of comprehensive guidance for the full range of different dishonesty offences. There are now six distinct categories with their own guideline, namely: general theft; theft from shop or stall; handling stolen goods; going equipped for theft or burglary; abstracting electricity; and making off without payment. The general theft guideline deals with thefts from person, thefts of and from motor vehicles, thefts from dwellings and all other section 1 Theft Act 1968 offences, save for shoplifting.
At first blush, the number, and detailed nature, of the categories would appear to lend itself to a more prescriptive approach being adopted by the courts. However, there is, as ever, plenty of opportunity for submission as to where within the guideline each case falls, and where within the range the sentence should be. The guidelines are structured in the now familiar manner with categories being determined by the level of culpability and harm evident in each case. Culpability can be High, Medium or Lesser culpability. Most cases will fall into the Medium category with Higher culpability being reserved for cases such as where a leading role is present, there has been a breach of a high degree of trust or where a victim has been targeted on the basis of vulnerability. The Lesser culpability category will, similar to other guidelines such as the Drug guideline, be for cases where the defendant has been involved through coercion or performed a limited function under direction.
Harm is determined by reference to the financial loss suffered along with any “significant additional harm” suffered by the victim. This additional harm factor enables the court to move up a category where, for example, there is emotional distress or a high level of inconvenience to the victim, or where the items stolen where of substantial value to the victim, regardless of their monetary worth. The list of additional harm factors varies within the various guidelines but none of the lists are exhaustive, always pleasing for the tougher tribunals. This focus on victim impact is very much in line with recent government rhetoric, and should cause no surprise.
Once culpability and harm levels have been determined, the specific case can be placed into the customary box including an appropriate starting point and range of sentence. Thereafter, the usual list of factors increasing or decreasing the level of seriousness are applied to provide the appropriate sentence before any credit for guilty plea is applied. Within the theft from a shop or stall guideline, there is a separate box dealing with “Prevalence” which requires the courts to take into account any particular harm that offending of this nature is causing within the local community. Such a finding must be based upon supporting evidence but one can readily imagine that it will become common practice for such evidence to be presented by the CPS at the sentencing hearing of most theft cases. Effectively, this Prevalence factor has the potential consequence of conflating a defendant’s offending with other nameless offenders, and punishing him for their criminality. On a positive note for defendants, the Guideline also contains explicit guidance that where the offender has a propensity to misuse drugs or alcohol and there is a sufficient prospect of success, an appropriate community order may be a proper alternative to short or even moderate custodial sentences.
It will only be after the Guideline has been in effect for some time that it will become clear what if any change in sentencing it has wrought. In my view, whilst there is nothing within the Guideline to suggest that there will be a wholesale transformation of the sentencing landscape, as there has been for other offences previously such as sexual offences or offences of violence, the focus on victim impact is likely to lead to a modest increase in sentencing levels in many cases.