Practice and Procedure

R v McPHERSON (2003)

PUBLISHED May 12, 2003

In all the circumstances a community rehabilitation order, with conditions attached to address drug problems, would afford better protection to the public than a custodial sentence of 18 months' imprisonment.Appeal against sentence with leave of the single judge. On 8 January 2003 at Thames Magistrates court the defendant ('M') pleaded guilty to theft. He was committed to Southwark Crown Court for sentencing and on 10 February 2003 HH Judge Rivlin sentenced him to 18 months' imprisonment to run consecutively with a sentence M was already serving. On 7 January 2003 M was observed by store detectives hiding 3 pairs of ladies shoes in his coat and then leaving the store and was apprehended outside. M was a crack addict. Between 1976 and 1999 he was convicted on seven occasions. Since 2000 he had been convicted of shoplifting 27 times. On 21 August 2002 he was convicted of shoplifting whilst on licence and sentenced to a total of 8 months' imprisonment. He was released on licence on 20 December 2002, the licence contained a drugs abstinence requirement. The licence was not complied with and on 22 January 2003 the Home Secretary ordered M's recall. The order expired on 20 April 2003 and it was that sentence that the present offence was ordered to run consecutive to. When sentencing the judge commented that M had been treated leniently in the past and a substantial custodial sentence was required. M appealed sentence on the ground that it was manifestly excessive. There was a lack of sophistication in the offence, M had been acting alone, the property was recovered and no violence was involved. If 18 months was appropriate following a guilty plea then the starting point was too high for an offence of this sort. The length of the sentence gave the appearance that M was being punished again for offences previously punished by the courts.HELD: (1) The court had to bear in mind that when the judge sentenced M custody was the only real option before him. Despite the nature of the offence there came a time, in the career of a shoplifter, when repeated offences made it necessary for the courts to impose significant terms to protect business' and the public. The judge was clearly correct to make the sentence run consecutive to the term he was serving for breach of licence. (2) The court of appeal had the advantage, not available to the sentencing judge, that M had completed his term for breach of licence and had served two months of the present sentence. The court of appeal also had the benefit of two probation reports, not available to the sentencing judge, which recommended a community rehabilitation order with conditions attached. (3) The court had to assess, with the benefit of the reports, the best way of protecting the public. It was not without hesitation that the court came to the conclusion that to tackle the problems presented to society M should be given the opportunity to benefit from probation services in the way of a community rehabilitation order with conditions attached to enable him to continue to address his drug problem. (4) The sentence of 18 months would be quashed and a community rehabilitation order of two years would be substituted with conditions attached that M must: (i) attend group work programme and individual sessions; (ii) remain free of drugs; and (iii) attend a crack programme to address his drug problem. Once the order was in force it was subject to reservation to the crown court.Appeal allowed.

[2003] EWCA Crim 1655