Shutt, R. v

MR JUSTICE JACK: On 4th August 2010 the applicant, Andrew Shutt, pleaded guilty before magistrates to eight charges of theft. He was committed for sentence and on 24th November at the Inner London Crown Court he was sentenced to eight months' imprisonment on each count concurrent. His application for leave to appeal against that sentence has been referred to the full court by the Registrar. We grant him leave.

The appellant was employed as a cashpoint engineer by G4 Security. His job was to repair cashpoint machines. On eight occasions between June 2009 and April 2010 he stole £5,980 from machines on which he was working. He was discovered when an audit was carried out. He admitted taking the money. He said it was used to pay household bills. He had two young children and a non-working wife to support.

The appellant is aged 31 and was of previous good character. There is no doubt that he is genuinely remorseful and despite his straitened circumstances he has repaid the sum of £3,842. It was his intention to repay the rest. He stole the money because his family were struggling financially. It appears that this was at least in part as a result of his being off sick for four months following an occasion when he was acting as a security guard for the transfer of money and while he was being robbed at gunpoint one of the robbers was shot dead in front of him by the police. That experience had a serious effect on him which was still continuing at the time of the sentence. He had also been the victim of a similar robbery in 2007, although no guns appear to have been fired on that occasion.

He had sought help with his mental state through his general practitioner and was looking for counselling to help him to recover from the effect of the second attack, but he had not reached the head of the queue.

The first pre-sentence report recommended a community order with 12 months supervision and 10 days of education training and employment. The Recorder did not consider that this would be commensurate with the seriousness of the offences and asked for a further report. A second report proposed 150 hours unpaid work.

In passing sentence, the Recorder referred to the Sentencing Guideline and held that there was here a significant degree of trust, although not a high degree of trust - the latter being the phrase used in the Guideline. Where the theft is of more than £2,000, but under £125,000, in breach of a high degree of trust, the Guideline provides a starting point of two years with a range of 12 months to three years. That is the same as where more than £20,000 is taken but less than £125,000 in the absence of a high degree of trust. Where the theft is of between £2,000 and less than £20,000, in the absence of a high degree of trust, the starting point provided is 18 weeks with a range of a community order to 12 months.

We have been referred to a number of authorities. We take one example. In Kinloch [2009] EWCA Crim. 1356, the offender worked for a brewery and ran their public houses in central London. He was responsible amongst other tasks for collecting takings. He stole £20,000. This court accepted the submission that the manager of a public house does not fall into the high category, that is of a high degree of trust, merely by virtue of his responsibility for banking takings. So the court applied the guideline for theft of £2,000 to £20,000 and reduced a sentence of 16 months to nine months. To take another example, in Harris [2010] EWCA Crim. 498, the offender was a manager for Tesco who stole £4,000. The sentence of 10 months was reduced to a community order.

In the present case we think that the Recorder put the offending higher in the scale than it was. We think also that she substantially underestimated the mitigation arising in connection with the robberies in which the appellant had been innocently involved in the course of his work. We do not for a moment excuse his conduct, but they should mitigate his sentence.

We consider that a lower sentence should have been passed and it should have been suspended. The appellant has now served a little over two weeks in prison, which has no doubt come as a very unpleasant shock. The sentence we consider appropriate is one of six months, which will be suspended for two years. There will be a supervision period of 12 months with a supervision requirement for that period and 10 days of education training and employment, all as recommended in the first pre-sentence report. The appeal is allowed accordingly.