R v Webbe R v Mitchell R v Davis R v Moore R v White

JurisdictionEngland & Wales
JudgeTHE VICE PRESIDENT
Judgment Date02 May 2001
Neutral Citation[2001] EWCA Crim 1217
Docket NumberNo: 200101165/Y3-200007338/X1-200100107/X1-200006738/Z3-200004860/Z1
CourtCourt of Appeal (Criminal Division)

[2001] EWCA Crim 1217

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

The Vice President

(Lord Justice Rose)

Mr Justice Leveson and

Mr Justice Mitting

No: 200101165/Y3-200007338/X1-200100107/X1-200006738/Z3-200004860/Z1

Regina
and
Bernard Webbe
William Andrew Mitchell
Andrew Davis
Robert John Moore
Paul White

MR G WHELAN appeared on behalf of the Appellant WEBBE

MR J LLOYD-JONES appeared on behalf of the Appellant MITCHELL

MR C MORGAN appeared on behalf of the Appellant DAVIS

MISS S HALES appeared on behalf of the Appellant MOORE

MR E HAYGARTH appeared on behalf of the Applicant WHITE

MR AYLETT appeared as an Amicus

THE VICE PRESIDENT
1

These four appeals and one renewed application for leave to appeal against sentence have been listed together to enable the Court to consider the proposal of the Sentencing Advisory Panel, in their advice to this Court in March 2001, that sentencing guidelines should be framed in relation to offences of handling dishonestly obtained goods, contrary to section 22 of the Theft Act 1968.

2

The Court is grateful to Mr Aylett, on behalf of the Attorney-General, as amicus, for his written and oral submissions as to whether and, if so, in what terms guidelines should be framed.

3

The difficulty of issuing guidelines in relation to handling arises from the enormous variety of possible sentences according to the circumstances, as pointed out by Lord Lane CJ, in R v Patel (1984) 6 Cr App R(S) 191 at pages 192 to 193. The offence is triable either way and can attract a penalty within the range from a conditional discharge or modest fine at one end, to many years' imprisonment, up to the maximum of 14 provided by Parliament, at the other.

4

The particular feature of handling which marks it out from most other offences is that it is, by definition, ancillary to another offence in a way which can conveniently be described as secondary to a primary offence. Because the primary offence may be, for example, shoplifting or armed robbery, the degree of gravity of the secondary offence can vary accordingly.

5

This lead Mr Aylett, in his written submissions, to invite us to consider whether guidelines in relation to handling are practicable or desirable, when the disparate character of handling offences is compared to the much more limited kinds of conduct involved in some cases in which, hitherto, the court has issued guidelines. For example, causing death by dangerous driving, ( R v Boswell 79 Cr App R 277), rape ( R v Billam 82 Cr App R 347), white collar dishonesty ( R v Barrick 81 Cr App R 78 and Clark [1998] 2 Cr App R 137), the carrying and use of knives ( Attorney-General's Reference 38 of 1996 [1997] 2 Cr App R(S) 10) and incest

6

( Attorney-General Reference No 1 of 1989 11 Cr App R(S) 409) are all offences where the criminal conduct does not generally embrace a wide range of activity.

7

On the other hand, guidelines have been framed in relation to firearms offences ( R v Avis [1998] 1 Cr App R(S) 420), burglary ( R v Brewster [1998] 1 Cr App R(S) 181), smuggling ( R v Dosanjh [1999] 1 Cr App R(S) 107) and health and safety offences( R v Howe & Sons [1999] 2 All ER 249), all of which may be committed in widely differing circumstances.

8

We have therefore concluded that, although there is, as it seems to us, no clear evidence of inconsistency in the Court's current sentencing practice, it will be helpful in promoting consistency to adopt the Sentencing Advisory Panel's proposal that guidelines should be given. We stress, however, as this Court has stressed in earlier cases, that what we suggest is not to be regarded as mandatory, but is by way of guidance only.

9

There are a number of authorities to which reference can conveniently be made, which show the range of sentences which may be appropriate in relation to handling. In R v Wilson (1982) Cr App R(S) 196, a sentence of 12 months was reduced to 2 months, in relation to a man of 40 of good character who, operating a caravan site, pleaded guilty to handling two stolen caravans worth about £4,500, which he had bought for his own use.

10

In R v Battams (1979) 1 Cr App R(S) 15, the Court of Appeal indicated that a sentence of imprisonment was appropriate for a receiver of stolen goods, obviously known in the locality as a person willing to assist in the disposal of such goods, however modest the sums of money involved. In that case, a sentence of 18 months was reduced to 12 months, to take account of the appellant's physical disability.

11

In R v Khemlani (1981) 3 Cr App R(S) 208, a man of good character, who pleaded guilty to handling 350 stolen watches, was sentenced to 3 months' imprisonment. But the Court of Appeal took the view that the matter could be far better met by imposing a fine and making a compensation order in favour of the owners of the goods.

12

In R v Hutchings 15 Cr App R(S) 498, the Court of Appeal drew a distinction between those convicted of committing an armed robbery of a post office van and those convicted of assisting in the disposal of the proceeds of the robbery, and, the robbers having been sentenced to 15 years' imprisonment, the handlers were sentenced initially to 10 years, reduced on appeal to 7 years.

13

In R v Bloomfield (1995) 16 Cr App R(S) 221, the Court of Appeal noted that the appropriate sentencing bracket for a receiver, who dealt regularly with thieves and burglars providing a regular outlet, was between 2 and 4 years' imprisonment, although, in that particular case, which was a one-off offence, a significantly lower sentence was imposed, namely 15 months for receiving three stolen caravans, for which he, a caravan dealer, had paid £9,000.

14

In Attorney-General's Reference No 70 of 1999 [2000] 2 Cr App R(S) 28, sentences totalling 12 months' imprisonment were increased to 30 months in relation to an offender convicted of conspiracy to handle and steal computers, which he sold through his business. In the course of the judgment of the Court, reference was made, at page 30, to a number of authorities, to at least one of which we have already referred.

15

In that context, we turn to the advice of the sentencing panel with which, as will emerge, we largely although not entirely agree. Paragraph 11 of that advice, with which we agree, is in these terms:

"The relative seriousness of a particular case of handling depends upon the interplay of a different factors. One important issue is whether the handler has had advance knowledge of the original offence; or has directly or indirectly made known his willingness to receive the proceeds of the original offence, as compared with a handler who has had no connection with the original offence but who has dishonestly accepted the stolen goods at an undervalue. Where the handler has had knowledge of the original offence, the seriousness of the handling is inevitably linked to the seriousness of that original offence. The link to the original offence explains the need for the high maximum penalty of 14 years' imprisonment for handling, which might otherwise look anomalous. Sentences approaching the maximum should clearly be reserved for the most serious and unusual cases where the handler had previous knowledge of a very serious offence such as an armed robbery, which itself carries life imprisonment as its maximum."

16

Paragraph 12, with the terms of which we also agree, and says as follows:

"The replacement value of the goods involved is often a helpful indication of the seriousness of the offence. (In this context the Mode of Trial guidelines suggest that cases of handling should normally be dealt with in the magistrates' court, and hence attract a maximum sentence of six months' imprisonment, if the value of the property is under £10,000.) We do not, however, believe that monetary value in itself should be regarded as the determining factor."

17

We interpose the comment that it is important for sentencers to bear in mind that value would not be regarded as prescriptive. There is an obvious difference, for example, between the gravity of receiving in a public house £100 worth of stolen television sets, and the gravity of receiving £100 in cash from the proceeds of a robbery which has taken place in the receiver's presence. Furthermore, accurate values in relation to the property received may very often be extremely difficult to ascertain.

18

The panel, in paragraph 12 of their advice, go on to identify other factors significantly affecting the relative seriousness of the handling offence, namely the level of sophistication of the handler, the ultimate designation of the goods, the criminal origin of the goods, the impact on the victim, the level of profit made or expected by the handler, and, especially in cases of actual or intended disposal of goods, the precise role played by the handler. In our judgment, those factors are rightly identified.

19

We also agree, in relation to paragraph 13 of the panel's advice, that handling cases at or towards the lower end of the scale are characterised by the handler having no connection with the original offence, an absence of sophistication on the part of the handler, the less serious nature of the original offence, the relatively low value of the goods and the absence of any significant profit.

20

The sentencing panel, in paragraph 14, go on to identify nine factors, which may be regarded as aggravating the offence. With each of those factors we agree. They are as follows:

1. The closeness of the handler to the primary offence. (We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or...

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