Shutt, R. v

For employee theft, the sentencing category must reflect the actual degree of trust involved. A significant degree of trust does not, without more, justify treating the offence as one involving the guideline’s high degree of trust category. Serious psychological effects from traumatic events suffered innocently at work may substantially mitigate a later offence, although they do not excuse it. Where the offending has been placed too high in the sentencing range and material mitigation has been underestimated, an immediate custodial sentence may be replaced with a shorter suspended sentence and rehabilitative requirements.

The appellant pleaded guilty before magistrates to eight thefts and was committed to the Inner London Crown Court for sentence. While employed as a cashpoint engineer, he stole a total of £5,980 from machines he was repairing.

The Crown Court imposed eight months’ imprisonment on each count, concurrently. The appellant had no previous convictions, had repaid much of the money, and was remorseful. He relied on financial hardship and the continuing psychological effects of two robberies during his work, including an armed robbery in which a robber was shot dead in front of him.

His application for leave to appeal against sentence was referred to the full court. The central issue was whether the immediate eight-month sentence properly reflected the level of trust, the applicable guideline range, and the mitigation.

The appeal was allowed. The court granted leave and substituted a sentence of six months’ imprisonment, suspended for two years.

1. The Recorder had treated the offending as too high on the sentencing scale. The relevant Sentencing Guideline distinguished thefts involving a high degree of trust from thefts involving no such high degree. Although the appellant’s role involved a significant degree of trust, it did not warrant the higher assessment reflected in the sentence imposed.

2. The court considered the comparative sentencing decisions in Kinloch [2009] EWCA Crim. 1356 and Harris [2010] EWCA Crim. 498. They illustrated that responsibility for handling or banking an employer’s money does not automatically place an offender in the high-degree-of-trust category, and that a community-based outcome may be appropriate for a managerial theft of a modest sum.

3. The Recorder had also substantially underestimated the mitigation. The appellant had been innocently involved in two robberies during his work. The later armed robbery had seriously affected his mental state, and he had sought medical help and counselling. Those events did not excuse the thefts, but they materially reduced the proper sentence.

4. The appellant had already served just over two weeks’ imprisonment. The substituted sentence was suspended for two years, with 12 months’ supervision and requirements for supervision and 10 days of education, training and employment.

• Court of Appeal (Criminal Division) Granted leave to appeal and allowed the appeal against sentence, substituting a suspended six-month sentence.
• Inner London Crown Court On 24 November 2010, imposed eight months’ imprisonment on each of eight theft counts, concurrently.
• Magistrates’ Court On 4 August 2010, the appellant pleaded guilty to eight theft charges and was committed for sentence.