Chamberlin, R v

Where an adult elects trial in the Crown Court, the six-month summary sentencing limit for low-value shoplifting under the Magistrates' Courts Act 1980 does not apply. Sentencing must instead follow the applicable guideline and remain proportionate to the offence.

Custody for low-level shoplifting is a last resort. Persistent relevant offending, and the failure of earlier non-custodial measures, may justify custody and a sentence outside the ordinary guideline range. The court must nevertheless assess any current prospect of rehabilitation and impose the shortest custodial term commensurate with seriousness. In most cases involving a low-value, prolific, non-violent individual shoplifter, a sentence exceeding 12 months before credit for plea will be difficult to justify.

The appellant pleaded guilty in the Crown Court at Woolwich to attempted theft of clothing valued at £78. She had concealed the items in a foil-lined bag to defeat security devices. She had a lengthy record, including approximately 80 theft offences, and had repeatedly failed to respond to fines, community orders, drug rehabilitation requirements, suspended sentences and short custodial terms.

The sentencing judge imposed two years’ imprisonment, concurrent with an existing four-month sentence. In doing so, he considered R v Thomas [2013] 2 Cr App R (S) 86. The appellant appealed on the grounds that the sentence was manifestly excessive, that the low-value shoplifting regime limited the available sentence, and that insufficient weight had been given to rehabilitation. The central issue was the proper and proportionate sentence for persistent low-value shoplifting after election for Crown Court trial.

1. Appeal allowed. The court substituted nine months’ imprisonment for the two-year sentence.

2. Section 22 A(2) of the Magistrates' Courts Act 1980 expressly disapplied the low-value shoplifting limitation where an adult elected Crown Court trial. The Crown Court was therefore not bound by the six-month maximum applicable on summary disposal. The statutory extension of that regime to attempts did not materially mitigate this offence, since the appellant had done all that she could to complete it and only the shop staff’s intervention prevented completion.

3. The applicable theft-from-shop guideline placed the offence in high culpability because of planning and sophistication, but in the lowest harm category. Its ordinary range was therefore far below the sentence imposed. Relevant recent convictions could justify an upward adjustment outside that range, and significant persistent offending could cross the community and custody thresholds. R v Thomas [2013] 2 Cr App R (S) 86 was an illustration of that principle, rather than a guideline case.

4. Under the Criminal Justice Act 2003, custody for low-level shoplifting remained a last resort. The court had to consider the purposes of sentencing, treat relevant convictions and offending on bail as aggravating, and assess whether a rehabilitative community disposal then had a sufficient prospect of success. Earlier unsuccessful diversionary work did not automatically prevent its reconsideration in a later case.

5. Here, the appellant’s persistence and the exhaustion of previous disposals justified immediate custody. However, a custodial term had to be the necessary minimum and proportionate to the offence as aggravated by the record. There was no rule requiring each further sentence to exceed the previous comparable sentence. A 12-month starting point was appropriate; after 25 per cent credit for the guilty plea, the proper sentence was nine months.

• Court of Appeal (Criminal Division): Allowed the sentencing appeal and substituted nine months’ imprisonment: [2017] EWCA Crim 39.

• Crown Court at Woolwich: Following a guilty plea to attempted theft, imposed two years’ imprisonment, concurrent with an existing four-month sentence.