Page & Anor, R v

For isolated adult shoplifting without threats or violence, imprisonment is a sentence of last resort and is almost never appropriate for a first offence. Where drug addiction causes the offending, a Drug Treatment and Testing Order will often be suitable. Persistent minor offending can justify short custody, but terms must remain proportionate to each theft and will rarely exceed two years in total after a guilty plea. Use of a child in theft is materially aggravating. An appellate court must assess the total sentence against the totality of offending, rather than consider one count in isolation.

Three applications concerning sentence were heard together so that the court could give guidance on sentencing individual shoplifters.

• Page appealed a total sentence of three years and ten months for domestic burglary, obtaining services by deception and theft.
• Maher appealed a total sentence of two years and three months after a Drug Treatment and Testing Order was revoked; his offending comprised repeated thefts, going equipped for theft, failures to surrender and breach of a community order.
• Stewart renewed an application for leave to appeal a total sentence of three years and three months for dwelling-house burglary, thefts and failures to surrender.

The central issue was the proper sentencing approach to isolated but persistent shoplifting, including offending associated with drug addiction, and whether the individual total sentences were excessive.

Disposition and guidance

1. Page's and Maher's appeals against sentence were allowed. Page's total sentence was reduced from three years and ten months to two years and ten months. Maher's total sentence was reduced from two years and three months to twelve months. Stewart's renewed application for leave to appeal was refused.

2. The court held that isolated adult shoplifting without threats or violence was comparatively less serious than offending by organised gangs or theft accompanied by violence. Custody should therefore be a last resort and will almost never be appropriate for a first offence. The reduction in the maximum sentence for theft under section 26(1) of the Criminal Justice Act 1991 was relevant when assessing older sentencing authorities. R v Roth, R v Macleod and R v Keogh were no longer authoritative insofar as they suggested otherwise.

3. Authorities involving use of a child in the theft did not displace that approach. That feature materially aggravates the offence and can still justify immediate custody. A community penalty may be appropriate even where a first offender acted with other adults in an organised theft.

4. Where shoplifting is attributable to drug addiction, a Drug Treatment and Testing Order will often be appropriate, consistently with Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R(S) 106. Persistent minor shoplifting may justify custody of up to one month, or two months where the offender prepared equipment to facilitate theft. Even for many offences or persistent offending on a significant scale, a guilty plea will rarely justify a total exceeding two years and will often merit twelve to eighteen months. R v Reeves was no longer a reliable guide to that total for individual shoplifters.

5. For Stewart, although the burglary term viewed alone was high, the court had to assess totality. His repeated offending, offending on bail, failure to respond to prior leniency, and the available scope for consecutive terms meant that the total sentence was not arguably excessive.

• Court of Appeal (Criminal Division) Page's and Maher's sentence appeals were allowed and their total terms reduced. Stewart's renewed application for leave to appeal was refused.
• Crown Court At Norwich Crown Court, Page received three years and ten months' imprisonment. At Blackfriars Crown Court, Maher's Drug Treatment and Testing Order was revoked and he received a total of two years and three months' imprisonment. At Newcastle Crown Court, Stewart received a total of three years and three months' imprisonment.
• Magistrates' Courts Each applicant had pleaded guilty before magistrates and was committed to the Crown Court for sentence in respect of the relevant offences.