Mitchell & Anor v R.

In sentencing for theft and damage to railway signalling cable, seriousness depends on culpability and on harm caused, intended or foreseeably risked. The modest value obtained by offenders does not reduce the significance of substantial loss, disruption and public inconvenience caused to the railway.

A sentencing starting point stated in an earlier railway-cable case is not a fixed tariff. It permits movement according to the circumstances, including the actual loss and the offenders’ records. A deterrent sentence may properly reflect the nationwide prevalence of this offending and the railway’s particular vulnerability, but it must remain proportionate to the offending.

The appellants pleaded guilty in the Crown Court at Nottingham before HHJ Teare to theft of, and damage to, railway cable. Mitchell was involved in two incidents; Kelham was involved in the second and admitted breach of a suspended sentence for similar offending.

The thefts caused signalling failures, closure of part of the East Coast main line, serious disruption and an estimated loss to Network Rail of at least £75,000. Each appellant received three years’ imprisonment for the index offending after full credit for guilty pleas. They appealed on the ground that the starting point before plea credit was manifestly excessive.

The central issue was the proper sentence for railway-cable theft where the gain was small but the consequential loss and disruption were substantial.

1. The appeals were allowed to a limited extent. The sentences on the theft charges were reduced to two years’ imprisonment, allowing full credit for the guilty pleas.

2. The court accepted that railway-cable theft does not fit readily within the theft sentencing guidelines. Although the offenders’ gain and the cable’s intrinsic value were small, the sentencing assessment had to reflect culpability and harm. The appellants were at least reckless as to the harm caused by removing signalling cable. The harm included an estimated £75,000 loss to Network Rail, substantial delays and cancellations, and serious inconvenience to passengers.

3. Deterrence was a legitimate consideration. The judge’s reference to it did not improperly increase sentence for merely local prevalence. The court could take account of the nationwide prevalence of this offending, the need to protect the railway and the travelling public, and the railway’s inability sensibly to protect itself against such attacks.

4. Manion and Kershaw [2011] EWCA Crim 234 did not prescribe an inflexible two-year sentence or starting point for every railway-cable theft. A starting point allows movement on either side according to the circumstances. Here the offending was more serious in financial loss than that case, but the court concluded that a sentence of two years after full plea credit was appropriate rather than the three years imposed.

5. Although Kelham faced fewer index counts, his offending only two days after a suspended sentence for similar cable theft justified the same sentence as Mitchell for the index offending.

• Court of Appeal (Criminal Division): Appeals allowed to the extent stated; the three-year sentences for the theft charges were reduced to two years’ imprisonment.

• Crown Court at Nottingham: HHJ Teare sentenced each appellant to three years’ imprisonment for the index railway-cable offending after guilty pleas. Kelham also received ten weeks’ imprisonment for breach of a suspended sentence.