Allen, R v

The theft sentencing guideline may properly treat theft by a trusted carer from a vulnerable adult as high culpability because of the grave breach of trust. Immediate custody can be necessary even for an offender of good character who shows remorse.

However, a sentencing judge must impose a sentence that properly reflects the applicable guideline range and the identified aggravating and mitigating features. An unexplained increase above the guideline starting point may make the sentence manifestly excessive. The court must then substitute the sentence that is justified after allowing appropriate mitigation and full credit for an early guilty plea.

The appellant pleaded guilty before the magistrates to one offence of theft. While employed to assist a vulnerable adult with financial management, he made unauthorised withdrawals totalling £3,140 over approximately 10 months.

At Wolverhampton Crown Court, the judge treated the offending as category 2A under the theft guideline and imposed 20 months’ immediate imprisonment after full credit for the plea. The appellant challenged the categorisation, the adoption of a 30-month starting point, the treatment of mitigation, and the refusal to suspend the sentence.

The central issue was whether the custodial sentence was excessive.

1. The appeal was allowed to the extent that the sentence was reduced from 20 months to 14 months’ immediate imprisonment.

2. The offending was serious theft by an employee trusted to care for a vulnerable client. The appellant abused that trust, used the victim’s bank card and PIN, and took a substantial part of the victim’s limited monthly income over a prolonged period. Such offending undermines public confidence in care arrangements and may cast suspicion on innocent carers. The sentencing judge was therefore entitled to treat the breach of trust as placing the offence in culpability category A.

3. A non-custodial sentence was not appropriate. The appellant’s good character, remorse, depression and progress in addressing addiction did not displace the need for immediate custody.

4. The court did not need finally to resolve whether the harm category was 2 or 3. Although the victim could not readily bear the loss, the decisive error was the judge’s unexplained adoption of a 30-month starting point instead of the applicable guideline starting point. The aggravating matters said to justify that increase were not identified.

5. Allowing for the seriousness of the breach of trust, and also for the appellant’s good character and clear remorse, the appropriate sentence before plea credit was 21 months. Full credit for the early guilty plea reduced that term to 14 months.

• Court of Appeal (Criminal Division): In Allen, R v [2018] EWCA Crim 2189, the court allowed the sentence appeal to the extent of substituting 14 months’ immediate imprisonment.
• Crown Court at Wolverhampton: His Honour Judge Berlin sentenced the appellant on 5 June 2018 to 20 months’ imprisonment following a guilty plea to theft.