Neutral Citation Number: [2016] EWCA Crim 360
No: 201600077 A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 17th March 2016

B e f o r e:

LORD JUSTICE GROSS
 
MR JUSTICE SUPPERSTONE

HIS HONOUR JUDGE FARRER QC 
(Sitting as a judge of the Court of Appeal Criminal Division) 
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 R E G I N A 

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BEAU ANTHONY HODGKINS
 
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 Computer‑Aided Transcript of the Stenograph notes of
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Miss A Parnham appeared on behalf of the Appellant

The Crown was not present and was unrepresented
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 J U D G M E N T (Approved) 

1.	JUDGE FARRER:  On 7th December 2015 the appellant was sentenced by His Honour Judge Batty QC in the Crown Court at York to a total of 21 months' imprisonment.  That sentence was made up of 20 months' imprisonment for an offence of going equipped for burglary and theft and a consecutive sentence of one month for an offence of criminal damage.  An appropriate victim surcharge order and criminal courts charge were applied.  
2.	The appellant pleaded guilty to the offence of going equipped approximately one month before trial and now appeals against that aspect of his sentence by leave of the single judge.
3.	The facts of the offences are as follows.  At 9.15 pm on the evening of Tuesday 16th June 2015, the police were phoned by a member of the public who was concerned about people acting suspiciously on a railway bridge in Scarborough.  The police attended and found the defendant, who was searched under the Misuse of Drugs Act.  No drugs were found, but he was in possession of items including a pair of bolt croppers, Marigold gloves, a Father Christmas face mask and a camouflage hat.  In interview, the appellant claimed that the bolt croppers were to be used to retrieve a bicycle and the gloves were to be used in a sexual encounter.  He claimed that the mask had been given to him and that he wore the hat to disguise his baldness.  
4.	He was bailed but re‑arrested on an unrelated matter on 23rd July 2015.  Following arrest, he caused damage to a police cell by drawing on the wall.  In relation to that matter of criminal damage no complaint is made about the sentence of one month's imprisonment consecutive to that imposed for going equipped.
5.	At the time of sentence the appellant was 28 and had been convicted of 12 offences on six occasions.  Those offences included travelling on the railway without payment of fare, shoplifting and a robbery for which he received four years' imprisonment.  Those three offences were all committed in 2011 and he had been out of trouble for the approximately four years that followed.
6.	In his sentencing remarks, the learned judge indicated that he was prepared to give the appellant a one‑sixth discount for his guilty plea.  No complaint is made about that aspect of the sentence.  
7.	The learned judge then indicated that in his view the facts here dictated the conclusion that this was a case of going equipped for burglary, and following a trial the appropriate sentence would have been one of two years imprisonment.  Giving the discount to which he referred, that produced the sentence to 20 months.  
8.	In the grounds of appeal which have been helpfully elaborated upon before us today by Miss Parnham, it is submitted that the sentence of 20 months imprisonment imposed for the offence of going equipped was manifestly excessive.  
9.	In the grounds of appeal, and briefly today, we were invited to refer to the definitive guideline relating to offences for going equipped, which came into force in relation to offenders sentenced after 1st February 2016.  It follows that this guideline was not in force at the time of sentence.  In the case of Boakye & others [2012] EWCA Crim 838, this court indicated that where guidelines were expressly stated to apply from a certain date, then they could not be said to affect a sentencing practice prior to that date.  In these circumstances we take the view that it is not helpful to refer to that guideline.
10.	Miss Parnham submits before us today that the sentencing judge was wrong to conclude that the appellant was in possession of the items found with the intention of going equipped for burglary.  We disagree.  The judge indicated that what was planned was an offence of burglary at least.  We take that to mean that in his view this collection of items was consistent only with burglary or a more serious offence, namely robbery.  In our judgment, this experienced judge was entitled to draw that inference.  Whilst considered individually the items recovered might lend themselves to some lesser offence, when considered cumulatively it is difficult to conceive of their use in other than burglary or robbery; certainly the possession of the mask and hat suggest that the intended offence involved the need for disguise, and therefore the contemplation of potential contact with others.
11.	In the grounds of appeal Miss Parnham submits that, even in those circumstances, a starting point of two years cannot be justified.  In support of that proposition she sought to rely upon the case of Shariff [2012] EWCA Crim 768.  In that case a 18‑year‑old man of good character was arrested at 2 o'clock in the morning in possession of a glass hammer and a torch.  He had earlier been observed looking through the window of student accommodation.  He was convicted after trial and given a 12 month suspended sentence.  This court reduced that sentence to one of six months suspended for two years.  The submission made in the grounds of appeal is that Shariff is a broadly comparable case and demonstrates that the present sentence was manifestly excessive.  
12.	We cannot accept that submission.  Shariff is not a guideline case and is therefore of limited assistance.  In any event, we note that the sentence for Shariff was reduced because of his age, good character and because he had spent some 119 days on curfew awaiting sentence.  That period could not be ordered to count towards the suspended sentence and therefore some discount had to be made to reflect it.  
13.	In our judgment, the appellant's case is considerably more serious.  This appellant was in possession of a face mask and hat.  He was plainly contemplating an offence involving at least the possibility of contact with an innocent third party.  Furthermore, he had not been subject to a lengthy curfew which would not otherwise count towards his sentence.  In addition, he has relevant previous conviction and was on licence at the time of his arrest, albeit we do not lose sight of the fact that he had been out of trouble for some years prior to the present offence. 
14.	In our judgment, the learned judge was entitled to conclude that this was a serious example of going equipped.  In these circumstances we conclude that, whilst this sentence was severe, it was not outside the range available to the judge.  This appeal is accordingly dismissed.