Sentencing shop theft

15 April 2008

Shoplifting is one of the most common of criminal enterprises. A total of 55,828 individual defendants were convicted of shop theft in 2005. It represents the largest group of either way offences sentenced in the court system and it follows that if the courts sentence appropriately for such offences, there might be a prospect of reducing overall figures significantly. To develop proposals on this subject the Sentencing Advisory Panel (SAP) carried out a consultation programme and also collected data on a sample of 1,563 cases from 2004/5. Such information is a valuable resource in considering how to develop the sentencing of shop theft.

Research shows that most such offences involve low value goods, little planning, no violence and no damage. In such cases it is therefore of relatively low seriousness. Cases which do involve the above additional elements are aggravated by them and become more serious. Absent aggravating factors, the SAP favours a non-custodial approach. It acknowledges that shoplifters often present in court as persistent offenders with significant numbers of previous convictions for similar offences. In such cases sentencing thresholds will be crossed including the custody threshold.

The research revealed interesting information. Most offences are against major chain stores. The median value of goods was £40. Goods were normally recovered. Violence in one form or another was found in 10 per cent of cases. Almost all offenders had some previous convictions – on average 19 previous appearances for 42 offences! Community sentences were imposed in 32 per cent of cases and custody in 26 per cent. It was repeat offending that most predicted a custodial sentence and especially so if the last sentence had been custody.

Dealing with seriousness, the basis for determining sentence, the SAP says that culpability is at the highest level because of the intention to permanently deprive. The lowest level of culpability applies to those who spontaneously steal on the spur of the moment. Dealing with harm, the SAP sees that the cumulative effect of shoplifting is significant even if each individual case is of low value. In its view the nature of the retailer is also significant. Small retailers suffer more and that is a consideration for sentencers.

Involving children, stealing while subject to a banning order, intimidation, threats or actual violence significantly aggravate the seriousness of shop theft. So does the targeting of particularly high value goods or operating in groups or gangs. In the event of any, some or all of these factors being present then the seriousness of the particular offence will be raised and sentence will probably cross thresholds up to and including the custody threshold.

Personal mitigation elements

With regard to mitigating factors to reduce seriousness, the SAP has not identified any factors specific to shop theft but do include its general range of such factors from remorse through co-operation to age of the defendant. It does identify two elements in personal mitigation. Desperation such as need for food or particular hardship specific to the defendant may amount to enhanced personal mitigation. Genuine assistance in the recovery of property, as opposed to the recovery of goods from a person arrested with property still on him, can amount to a mitigating factor capable of reducing seriousness.

Shop theft is an either way offence with a maximum sentence of seven years and for the purposes of the SAP, as in all cases, the proposals are based on a first time offender who has pleaded not guilty and been found guilty. The SAP suggest four levels of offending and, in accordance with its practise, suggest a starting point and a range of sentence for each level. The most serious are the organised group offences with substantial threats or violence but short of robbery. Such offences should have a sentencing start point of 12 months and a range of 36 weeks to four years in custody.

The second level of offence includes significant intimidation or actual violence resulting in slight injury or very high level planning or significant damage done. Such cases attract a starting point of six weeks custody and have a range of high level community order through to 36 weeks custody.

The third level includes intimidation or threats or some planning or some related damage. Such cases will attract a starting point of low level community order and a range from fine to medium-level community order. Finally the lowest level of all involves no planning and low value. For such cases the start point is a fine and the range is conditional discharge through to community order. Thus we have the range of approaches recommended by the SAP for all types of shop theft. They probably seem something like current experience in the court rooms across the country.

However, the Panel have done some analytical work which indicates that following these proposals (if they are adopted by the Sentencing Guidelines Council (SGC)) will impact on sentencing by producing more fines and discharges, less community orders and less custodial sentences. The data suggests, subject to wide margins for error, that about 20 per cent would receive less serious penalties than previously and 20 per cent would receive more serious penalties.

Appropriate sentencing

This proposal has to be seen in the context of the SAP’s other proposals with regard to theft and offences of dishonesty generally. It is important that they have singled out shop theft for precisely the reason they have set out. Such offending forms the bulk of the work of the magistrates court in relation to dishonesty and forms a significant proportion of Crown Court work too.

Making the sentence more specifically appropriate to the seriousness of the particular offence is obviously very important and if, coincidentally, the net effect is helpful both from the point of view of prison overcrowding and over use of scarce community sentencing resources, so much the better. Advocates need to keep this proposal in mind. If it is adopted by the SGC then it has to be applied by the courts unless they are prepared to say why they do not apply it. If it is applied fewer defendants will be sent to prison.