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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gilder, R. v [2011] EWCA Crim 1159 (05 April 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1159.html Cite as: [2012] 1 Cr App R (S) 4, [2011] EWCA Crim 1159

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5th April 2011

MR JUSTICE BLAIR:

1. This is an appeal by Lewis Gilder, aged 27, who pleaded guilty at Coventry Crown Court to an offence of theft and an offence of handling stolen goods. He was sentenced by His Honour Judge Ross QC to a term of 15 months' imprisonment in relation to the theft, in respect of which he was also disqualified from driving for three years, and one month's imprisonment on the handling charge, which was consecutive. He appeals against sentence by leave of the single judge. The only issue relates to the three year disqualification from driving.
2. Nothing need be said about the handling charge, which involved a gold watch and which was unrelated to the theft charge.
3. The theft involved diesel fuel from a depot which was broken into. It was, as the learned judge said, a highly sophisticated and planned operation by professional criminals including the appellant. A group of them came to the depot in two trucks. The locks were changed and the men broke in, the appellant being a passenger in one of the trucks. They had plastic containers on the back of the trucks, which they filled up with diesel. On the first evening they went to the depot twice and on the second evening, three times. The total value of the amount stolen was £9,116.
4. The appellant has a poor record, including five previous convictions for theft and similar offences. The pre-sentence report recommended a suspended sentence. There is nothing in it which deals with disqualification. There was discussion in the prosecution opening about the truck, or presumably one of them, which had been used in the theft and seized subsequently by the police. The prosecution said it did not believe that it belonged to the appellant.
5. In his sentencing remarks the judge said: "I make a forfeiture order for the van that was seized by the police. I disqualify you from driving for three years". He added a reference to the Powers of Criminal Courts (Sentencing) Act 2000 .
6. There are two relevant sections in that regard, namely sections 146 and 147 . In R v Sofekun [2009] 1 Cr App R (S) 78 , Sir Igor Judge, President, giving the judgment of this court, consisting of Leveson LJ and Penry-Davey J, held that section 146 of the Act provides a court with jurisdiction to order a defendant to be disqualified from holding or obtaining a driving licence for such period as it thinks fit instead of, or in addition to, dealing with him in any other way. The power is an additional punitive power available to the court whether or not the defendant is committed for a driving related offence.
7. Further, it was held that section 147 provides a specific power to order disqualification where, in relation to an applicable offence, the Crown Court is satisfied that a motor vehicle was used by the person convicted or by anyone else for the purpose of "committing or facilitating the commission of the offence in question". Facilitating the commission of an offence includes the taking of any steps after its commission for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection. The section applies, so far as relevant, where a person (a) is convicted before the Crown Court of an offence punishable on indictment with imprisonment for a term of two years or more, or (b) having been convicted by a Magistrates Court of such an offence is committed under section 3 to the Crown Court for sentence. Both sections were potentially applicable in the present case. In Sofekun the court made it clear that the decision whether to disqualify, and if so for how long, is fact-specific.
8. It is said on the appellant's behalf that the driving disqualification and the period of that disqualification were wholly wrong and not merited on the facts of the case. The essential point that has been advanced is that the appellant was not driving. So, it is submitted, disqualification would not be a punishment in relation to the offence in question, namely theft of the diesel. It is said that in Sofekun the car was essentially a delivery vehicle for drugs and so was integral to the offence.
9. Then it is said that disqualification for three years was too long; the point being made is that that is an equivalent period to that imposed compulsorily on a second conviction for drink driving.
10. In our view, the judge was fully entitled to impose a period of disqualification on the appellant since the trucks were evidently being used for the purposes of crime. Further, they were not in any way incidental to the crime, but an essential part of the crime because they were used to load up the stolen diesel oil and drive it away. It was not, in our view, a bar to disqualification that the appellant was a passenger, rather than a driver. However, there is, we consider, merit in the argument as to the length of disqualification imposed by the learned judge. We bear in mind the young age of the appellant and the fact that three years is a long period of disqualification for someone of such an age. We have decided therefore that the period of disqualification in this case should be 18 months, rather than three years. To that limited extent only this appeal is allowed.