Brooks, R v

A sentencing court may depart, even radically, from the normal guideline range where an offender’s relevant record shows persistent offending and repeated failure to respond to rehabilitative disposals. Protection of the public, punishment and deterrence may then carry greater weight.

The sentence must nevertheless remain proportionate to the offending as aggravated by previous convictions, and any custodial term must be kept to the necessary minimum. Sentencing is an individual evaluative exercise, not a mathematical calculation. A sentence may therefore be reduced on appeal where the judge was entitled to sentence outside the guideline range but selected a term that was excessive.

The appellant pleaded guilty at the Crown Court at York to three theft offences involving goods worth just over £1,200, of which goods worth £753 were recovered. He had an extensive record, including numerous theft and shoplifting offences, and had repeatedly failed to comply with community orders and suspended sentences.

The sentencing judge treated him as a persistent professional shoplifter and imposed concurrent terms of up to 27 months’ imprisonment. The appellant appealed with leave, contending that the sentence was manifestly excessive, inadequately justified as a departure from the theft-from-shops guideline, and unfairly disparate from the sentence imposed on his co-defendant.

The central issue was whether his persistent record justified the extent of the departure from the guideline range.

1. The appeal was allowed to a limited extent. The court quashed the 27-month sentence on Count 3 and substituted 22 months’ imprisonment concurrent with the sentences on Counts 1 and 2. The total sentence was therefore reduced to 22 months.

2. A sentencing judge may depart radically from the relevant guideline where an offender has a bad record and repeated sentences have demonstrated an inability or unwillingness to rehabilitate. In that situation, protection of the public may properly be given priority. The judge was entitled to regard the appellant’s repeated shoplifting as funding his lifestyle and to describe him as a professional shoplifter in that sense. The description did not depend on evidence of technical expertise in committing theft.

3. The guideline permits relevant recent convictions to justify an upward adjustment outside the category range, particularly in significant persistent offending. As explained in Chamberlin 2017 EWCA Crim 39, a judge must decide which sentencing purposes should carry greatest weight. Where custody and rehabilitative measures have failed, punishment and deterrence may properly come to the fore. The court also recognised the established principle restated in Marcantonio [2012] EWCA Crim 1279.

4. Those principles did not make a longer sentence inevitable. The term still had to be proportionate to the offence, aggravated by the previous convictions, and kept to the necessary minimum. The calculation was not merely mathematical. A notional three-year term after trial for Count 3 was excessive; 30 months was appropriate. Applying a 25 per cent guilty-plea reduction and rounding down produced 22 months.

5. The proposed comparison with the co-defendant disclosed no unfair disparity.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to a limited extent and substituted 22 months’ imprisonment on Count 3, concurrent with the other terms.
• Crown Court at York: On 6 February 2017, imposed concurrent sentences of 18 months on Counts 1 and 2 and 27 months on Count 3, producing a total of 27 months’ imprisonment.