R v Stephen Kelvin Rule

In a sentencing appeal, the absence of an express numerical starting point does not establish error where the offence category and sentencing route are clear from the sentencing remarks. For a high-value theft involving a significant breach of trust and planning, serious inconvenience and emotional distress may justify an uplift above the guideline starting point. A sentencing judge need not assign a separate numerical reduction for every mitigating factor where the remarks show that health, good character and the impact of imprisonment were considered. The Court of Appeal will not interfere with a stern sentence that is not manifestly excessive. An alleged prosecution assurance is not a basis for appeal where there was no formal assurance and the issue was not raised when the defendant pleaded guilty.

The appellant pleaded guilty in the Crown Court at Bournemouth to two counts of theft involving inheritance money belonging to family members. On 15 March 2024, the sentencing court imposed 33 months’ imprisonment on the first count and 15 months concurrently on the second count.

He appealed by leave, arguing that the sentence was manifestly excessive and wrong in principle. The grounds relied on his age, good character, poor health, the impact of imprisonment on his family, repayment of the stolen money and an alleged prosecution assurance that proceedings would not continue if repayment was made. The central issues were whether the sentencing judge had erred in assessing the offence, mitigation or the alleged assurance.

1. Appeal dismissed. The sentencing judge had not erred in principle, and the sentence was not manifestly excessive.
2. Offence category and starting point. Although the judge did not expressly identify the offence category, no one had been in doubt that the case was category 1A, and the sentencing remarks showed that the judge had adopted that categorisation. The theft involved an amount significantly above the level for category 1 harm, a very significant breach of trust and significant planning. It also caused serious inconvenience and real emotional distress to the victims.
3. Uplift and mitigation. The applicable starting point was 3 years and 6 months. On the facts, an uplift of at least six months would have been appropriate for the serious aggravating factors. It would have been preferable for the judge to explain the calculation more expressly, but he was entitled to reach the sentence imposed. The remarks showed that he had considered the appellant’s health, good character and the impact of imprisonment. Even allowing a very substantial 30 per cent reduction for mitigation, the resulting sentence could be no lower than 30 months. A sentence of 33 months might be stern, but was not manifestly excessive. Reducing it by a calculated three-month disparity would amount to impermissible tinkering.
4. Alleged prosecution assurance. There was no formal assurance that the prosecution would offer no evidence if repayment were made. In any event, such an assurance could not found an appeal where the appellant pleaded guilty at trial and the point had not apparently been raised then.

There was therefore no basis for appellate intervention.

1. Court of Appeal (Criminal Division): In [2024] EWCA Crim 752, the court dismissed the appeal by leave of the single judge.
2. Crown Court at Bournemouth: The appellant pleaded guilty to two counts of theft on 8 February 2024. On 15 March 2024, the court sentenced him to 33 months’ imprisonment on the first count and 15 months concurrently on the second count.