Flack, R. v

Where an either-way offence is tried on indictment, the Crown Court is not bound to apply Magistrates’ Court sentencing guidelines. The difference between the Crown Court’s maximum sentence and the magistrates’ maximum makes such guidance unsuitable as a binding constraint.

A guideline for completed shop theft may also have limited assistance for an offence of going equipped for theft. The equipment may indicate preparation for repeated offending, while shop theft varies greatly in seriousness. Sentencing must instead reflect the offence and the offender’s circumstances.

The appellant pleaded guilty in the Crown Court at Snaresbrook to going equipped for theft. He had been found with a large gift bag lined with tin foil, which could prevent shop security alarms from operating.

He had numerous previous convictions, mainly for theft, and had breached community orders. The sentencing judge imposed nine months’ imprisonment, having concluded that a community sentence was not appropriate. He appealed on the basis that, although custody was justified, the sentence was excessive.

1. Appeal allowed in part. A custodial sentence was the only sentence properly available, given the appellant’s record and repeated breaches of community orders. However, nine months’ imprisonment was too high for this offence and offender. A sentence of 24 weeks’ imprisonment was sufficient, with two days on remand to be deducted.

2. The Crown Court was not obliged to follow Magistrates’ Court guidelines when sentencing an either-way offence tried on indictment. The offence carried a maximum of three years’ imprisonment on indictment, whereas the magistrates’ maximum was materially lower. The different sentencing jurisdiction meant that the magistrates’ guideline could not bind the Crown Court.

3. The guideline for theft from a shop was of limited assistance. Going equipped for theft may demonstrate preparedness to commit repeated crime. Shop theft also ranges widely in seriousness and may involve planning, group activity, intimidation or valuable property. Further, the guidelines were directed to a first-time offender, which the appellant was not.

4. The court recognised the appellant’s remorse and stated wish to address his difficulties, but these matters did not displace the need for custody in the circumstances.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted 24 weeks’ imprisonment.
• Crown Court at Snaresbrook: Her Honour Judge Kamill sentenced the appellant on 17 February 2011 to nine months’ imprisonment for going equipped for theft.