Neutral Citation Number: [2011] EWCA Crim 1112
Case No: 201101291 A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 14th April 2011

B e f o r e: 

MR JUSTICE DAVIS 
 
RECORDER OF PRESTON 
HIS HONOUR JUDGE ANTHONY RUSSELL QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
 R E G I N A 

v 

WAYNE LESLIE FLACK
 
- - - - - - - - - - - - - - - - - - - - -
 Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr T Stevens appeared on behalf of the Appellant 
- - - - - - - - - - - - - - - - - - - - -
 J U D G M E N T 

1.	THE RECORDER:  This is an appeal against the sentence imposed by Her Honour Judge Kamill sitting at the Crown Court at Snaresbrook on 17th February of this year.  The appellant had pleaded guilty to going equipped for theft, having elected trial at the Crown Court at the plea and case management hearing, and he was sentenced to nine months' imprisonment with two days served on remand to be deducted.  He also received one day's imprisonment for a bail offence of failing to appear on the date for a plea and case management hearing was originally listed.
2.	On Thursday 7th October 2010, at about 1 o'clock in the afternoon, the appellant was in a group of about four or five people in Vicarage Field, Barking, near to a supermarket.  Police officers, who were concerned with another unrelated enquiry, spotted the appellant and noticed that he had a large gift bag, about 30 by 18 inches, and this bag was lined with tin foil, which is a common piece of equipment used by those who commit offences of shoplifting because the foil can prevent the security alarms in shops from being activated when an item with a security tag is removed.  The appellant was arrested and he made no comment when he was interviewed.
3.	The appellant is aged 42.  He has a number of previous convictions going back many years, the majority of which are for theft.  He has usually received community orders for these type of offences, but there have been breaches of some of these orders.  His last conviction was in February 2010, when he received sentences totalling six months' imprisonment, which included the activation of a suspended sentence for shoplifting and a sentence for having a bladed article in a public place.  
4.	The court has been referred to the Magistrates Guidelines for offences of going equipped and the guideline for theft from a shop contained in the guideline for theft and burglary in a building other than a dwelling.  
5.	In our view, the Magistrates Guideline must be approached with some care.  The offence of going equipped for theft is triable summarily or on indictment, and if tried on indictment the maximum sentence is three years' imprisonment.  The appellant elected trial at the Crown Court and it is not appropriate to view the Crown Court as being bound to apply the guidelines for a Magistrates Court hearing when the maximum sentence available in the Magistrates Court is one‑sixth of that available in the Crown Court.  In our view, the guideline for theft in a shop is also of limited assistance because such offences vary in seriousness and can involve a high level of planning, possible intimidation when carried out by a group and theft of valuable property.  Furthermore, the guidelines apply to a first‑time offender, which this appellant was not.
6.	The learned judge said that there was no way she could impose a community sentence as the appellant had breached most of his previous community sentences and the suspended sentence would have to be implemented in February of 2010.  
7.	Counsel for the appellant has submitted that although it is conceded that the learned judge was entitled to conclude that the custody threshold was passed, the custodial sentence in this case was too high, and that having stated that full credit for the guilty plea was given, her starting point, which must have been in the region of 13 and a half months after a trial, was in excess of what the offence merited.  It has also been submitted that the appellant is genuinely remorseful and is willing to work with probation to address his problems and that he recognises that it is necessary for him to address these problems in order to become more actively involved in the upbringing of his young son.  
8.	In our view, it is very much to his credit that he does recognise that he has problems and responsibilities and has this positive outlook.  The remedy, of course, is to a large extent in his own hands.
9.	We do not consider that the Crown Court is obliged to follow the Magistrates Guidelines in either way cases triable before it, nor that the guideline for actual theft is necessarily relevant to a case of going equipped because having the necessary equipment for carrying out crime may be an indication of being prepared to repeatedly commit crime.
10.	In granting leave.  The single judge said: 
"Although the learned judge was entitled to take the view that the custodial threshold was crossed, it is arguable (particularly given your plea) that 9 months' imprisonment was too long."
We agree and consider that a lower sentence would have been sufficient for this particular crime and given the appellant's circumstances, notwithstanding his poor criminal record, but we feel that a custodial sentence was the only sentence that could properly have been imposed.  Accordingly, this appeal is allowed to the extent that we reduce the sentence from nine months' imprisonment to 24 weeks' imprisonment, with the two days spent on remand to be deducted from that sentence.