R v Mcdonagh & Anor

A sentencing court may not depart from sentencing guidelines on the basis of local prevalence merely because of judicial experience. Proper evidence of prevalence is required. Applying R v Oosthuizen [2006] 1 Cr App R(S) 73, the court held that a deterrent sentence founded on unsupported local prevalence was erroneous.

A guilty plea may receive a reduced discount where the evidence is overwhelming. Immediate custody may nevertheless be justified for a planned theft committed at night by two offenders against a deliberately targeted and vulnerable victim, despite modest loss and the offenders’ youth. The sentence must still reflect all mitigation and be proportionate.

The appellants, aged 18 and 19, pleaded guilty at Northampton Crown Court to theft of diesel from a parked lorry. The theft was planned. They carried containers, gloves and screwdrivers, acted at night and fled when police intervened.

On 7 February 2014, the Crown Court imposed detention in a young offender institution for eight months on McDonagh and ten months on Lawrence, with victim surcharge orders of £100 each. They appealed against sentence with the single judge’s leave. The principal issues were whether immediate custody was justified, whether local prevalence could support deterrent sentences, and whether the terms properly reflected mitigation and plea credit.

1. Appeals allowed. The original custodial terms were clearly too long. The court quashed them and substituted two months’ detention in a young offender institution for McDonagh and three months’ detention for Lawrence. It reduced each victim surcharge order to £80.

2. The judge should have told counsel that immediate custody was under consideration and should have allowed submissions on a deterrent sentence. Judicial experience alone could not justify departure from sentencing guidelines because of local prevalence. Proper evidence was required before local prevalence could be used in that way. This applied the principle stated in R v Oosthuizen [2006] 1 Cr App R(S) 73.

3. The sentencing judge was nevertheless entitled to treat the prosecution case as overwhelming and to reduce the credit for guilty pleas to 20 per cent. Lawrence could also receive a somewhat longer term because of his caution and previous conviction.

4. Immediate custody remained justified. The theft was planned, committed at night, involved two offenders and deliberately targeted a lorry driver known to be asleep. Those features aggravated culpability. The court also gave weight to the relatively modest value of the diesel, the appellants’ youth and their lack of previous custody. Balancing those matters, the appropriate terms were substantially shorter than those imposed below.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence and substituted detention terms of two and three months respectively: [2014] EWCA Crim 478.
• Crown Court at Northampton: Following guilty pleas to theft, imposed eight months’ detention on McDonagh and ten months’ detention on Lawrence, with victim surcharge orders of £100 each.