De Weever, R v

A victim of theft from the person is not “vulnerable” merely because the victim carries a bag which makes theft easier. The offender must have targeted the victim because the victim was anticipated to be unlikely or unable to resist.

The sentencing court must identify the guideline category that most closely matches the offence, then adjust the provisional sentence for aggravating and mitigating features. Serious planning, force short of robbery, substantial inconvenience from stolen cards, and repeated failure to respond to sentences may justify a sentence outside the normal range for the initial category. The guideline already incorporates the need for deterrence in pickpocketing cases.

The appellant pleaded guilty at the Crown Court at Southwark to theft from a passenger’s shoulder bag on the London Underground. The Recorder sentenced him to 18 months’ imprisonment, less 132 days spent on remand.

He appealed against sentence with leave of the single judge. He contended that the victim was not vulnerable under the Sentencing Guidelines Council guideline on theft from the person, that the starting point was too high, and that excessive weight had been given to aggravation and insufficient credit to mitigation and his guilty plea.

The central issue was the correct guideline category and the resulting sentence for a planned, professionally executed pickpocketing offence.

1. Appeal allowed. The sentence was reduced from 18 months’ imprisonment to 10 months’ imprisonment, less 132 days spent in custody on remand.
2. The guideline requires a structured assessment. The court must select the description which most closely matches the offence, adjust the starting point for factors affecting seriousness, then take account of personal mitigation and any credit for a guilty plea. Guideline ranges may be exceeded where the circumstances, including relevant previous convictions, justify that course.
3. The Recorder had wrongly treated the complainant as a vulnerable victim. Under the guideline, vulnerability depends on the offender targeting a person because that person is expected to be unlikely or unable to resist. The complainant was selected because her shoulder bag enabled an unnoticed theft, not because of age, disability, or another inability to resist.
4. The appropriate initial category was therefore theft from the person not involving a vulnerable victim. It ordinarily carried a medium-level community order as its starting point, with a range from a fine to 18 weeks’ custody. However, the offence was planned and highly professional; involved a push amounting to force short of robbery; caused substantial inconvenience through the theft of debit and credit cards; and was committed by an offender who had repeatedly failed to respond to earlier sentences. Those features justified a provisional sentence at the top of the next guideline bracket, namely 12 months’ imprisonment.
5. There was no personal mitigation beyond the last-minute guilty plea, which was tendered after the appellant had seen compelling CCTV evidence. Applying a modest reduction for that plea produced the 10-month sentence. The court also noted that the guideline already allowed for the deterrent element identified in pickpocketing authorities, including R v Spencer and Carby (1995) 16 Cr App R(S) 482.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 803, the court allowed the appeal against sentence and substituted 10 months’ imprisonment, less 132 days spent on remand.
• Crown Court at Southwark — On 10 February 2009, following a guilty plea to theft, the Recorder imposed 18 months’ imprisonment, less 132 days spent on remand.