Theft Act 1968 (section 9)
This is a serious specified offence for the purposes of section 224 Criminal Justice Act 2003 if it was committed with intent to:
(a) inflict grievous bodily harm on a person, or
(b) do unlawful damage to a building or anything in it.
Triable either way
Maximum when tried summarily: Level 5 fine and/or 26 weeks’ custody
Maximum when tried on indictment: 14 years’ custody
Offence range: Community order – 6 years’ custody
This guideline applies to all offenders aged 18 and older, who are sentenced on or after 16 January 2012. The definitions at page 145 of ‘starting point’ and ‘first time offender’ do not apply for this guideline. Starting point and category ranges apply to all offenders in all cases, irrespective of plea or previous convictions.Where sentencing an offender for a qualifying third domestic burglary, the Court must apply Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.
Determining the offence category
The court should determine the offence category using the table below.
Category 1 Greater harm and higher culpability
Category 2 Greater harm and lower culpability or lesser harm and higher culpability
Category 3 Lesser harm and lower culpability
The court should determine culpability and harm caused or intended, by reference only to the factors below, which comprise the principal factual elements of the offence. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category.
Factors indicating greater harm
Theft of/damage to property causing a significant degree of loss to the victim (whether economic, sentimental or personal value)
Soiling, ransacking or vandalism of property
Occupier at home (or returns home) while offender present
Trauma to the victim, beyond the normal inevitable consequence of intrusion and theft
Violence used or threatened against victim
Context of general public disorder
Factors indicating lesser harm
Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal)
Limited damage or disturbance to property
Factors indicating higher culpability
Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation)
A significant degree of planning or organisation
Knife or other weapon carried (where not charged separately)
Equipped for burglary (for example, implements carried and/or use of vehicle)
Member of a group or gang
Factors indicating lower culpability
Offence committed on impulse, with limited intrusion into property
Offender exploited by others
Mental disorder or learning disability, where linked to the commission of the offence
Starting point and category range
Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. Where the defendant is dependant on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 may be a proper alternative to a short or moderate custodial sentence. A case of particular gravity, reflected by multiple features of culpability or harm in step 1, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page.
Offence Category Starting Point (Applicable to all offenders) Category Range (Applicable to all offenders)
Category 1 Crown Court Crown Court
Category 2 1 year’s custody High level community order – Crown Court (2 years’ custody)
Category 3 High Level Community Order Low level community order – 26 weeks’ custody
The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing category 2 or 3 offences, the court should also consider the custody threshold as follows:
• has the custody threshold been passed?
• if so, is it unavoidable that a custodial sentence be imposed?
• if so, can that sentence be suspended?
Factors increasing seriousness
Statutory aggravating factors:
Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction*
Offence committed whilst on bail
Other aggravating factors include:
Child at home (or returns home) when offence committed
Offence committed at night
Gratuitous degradation of the victim
Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution
Victim compelled to leave their home (in particular victims of domestic violence)
Established evidence of community impact
Commission of offence whilst under the influence of alcohol or drugs
Failure to comply with current court orders
Offence committed whilst on licence
Offences Taken Into Consideration (TICs)
Factors reducing seriousness or reflecting personal mitigation
Offender has made voluntary reparation to the victim
Subordinate role in a group or gang
No previous convictions or no relevant/recent convictions
Good character and/or exemplary conduct
Determination, and/or demonstration of steps taken to address addiction or offending behaviour
Serious medical conditions requiring urgent, intensive or long-term treatment
Age and/or lack of maturity where it affects the responsibility of the offender
Lapse of time since the offence where this is not the fault of the offender
Mental disorder or learning disability, where not linked to the commission of the offence
Sole or primary carer for dependent relatives
* Where sentencing an offender for a qualifying third domestic burglary, the Court must apply Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.
Consider any factors which indicate a reduction, such as assistance to the prosecution
The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. Where a minimum mandatory sentence is imposed under section 111 Powers of Criminal Courts (Sentencing) Act, the discount for an early guilty plea must not exceed 20 per cent.
A burglary offence under section 9 Theft Act 1986 is a serious specified offence within the meaning of chapter 5 of the Criminal Justice Act 2003 if it was committed with the intent to (a) inflict grievous bodily harm on a person, or (b) do unlawful damage to a building or anything in it. The court should consider whether having regard to the criteria contained in that chapter it would be appropriate to award imprisonment for public protection or an extended sentence. Where offenders meet the dangerousness criteria, the notional determinate sentence should be used as the basis for the setting of a minimum term.
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.
Compensation and ancillary orders
In all cases, courts should consider whether to make compensation and/or other ancillary orders.
Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of the sentence.
Consideration for remand time
Sentencers should take into consideration any remand time served in relation to the final sentence at this final step. The court should consider whether to give credit for time spent on remand in custody or on bail in accordance with sections 240 and 240A of the Criminal Justice Act 2003.
I will leave it to readers to judge whether tick box sentencing is an appropriate description of where the Sentencing Council is leading us and whether or not this is an improvement in the application of justice.