Manion, R. v [2011] EWCA Crim 234

[2011] EWCA Crim 234Case No 201005529 A6/201005878 A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2nd February 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE IRWIN
MR JUSTICE EDWARDS-STUART
Between
R E G I N ACrownv
Between
PETER DAVID MANIONWAYNE MARK KERSHAW
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr NL Neale appeared on behalf of Peter David ManionMr RS Sandford appeared on behalf of Wayne Mark Kershaw
J U D G M E N T
[1]MR JUSTICE IRWIN: On 9th September 2010, which was the appointed day of trial for the relevant offences at the Crown Court at Sheffield, both of the appellants pleaded guilty on re-arraignment, no jury having to be sworn, to two offences of theft.[2]On 30th September, they were sentenced by HHJ Moore as follows: in relation to Manion on counts 1 and 2, the two counts of theft, he was given three years' imprisonment on each count concurrent; and in relation to Kershaw a similar sentence was passed of three years' imprisonment on each concurrent, but in that instance the judge directed that the sentence would be served consecutively to a sentence of 26 weeks imprisonment already being served. Thus, for the instant offences, in each case there was a sentence of three years' imprisonment on each count concurrently.[3]The appellants appeal by leave of the Single Judge.[4]The facts can be summarised as follows. At about 2.45am on 12th January 2010, there was a total loss of power to railway lines in the area of Rotherham, South Yorkshire. A large amount of signalling cable had been stolen. There is some doubt as to the precise lengths, but it was a considerable quantity.[5]The following morning, police officers made inquiries at a local scrapyard and inside one of the metal bins was found a piece of cable matching the cable taken. Two males had brought the cable into the yard. The receipt for the cable was in the name of W Kershaw, with what was later found to be the appellant Kershaw's old address.[6]Both the appellants were arrested after the second offence but, when arrested, Mr Kershaw said in relation to this offence that he had not been at home and the receipt was not his. In a subsequent interview, he said that he had been out on the night in question and had dragged some cable away from a location close to the railway. Manion, in relation to this offence, said that he had had some involvement with the wire but denied that what he had done amounted to theft.[7]The offending underlying count 2 can be summarised as follows. On 14th January 2010, these appellants stole a further considerable length of cable valued at around £900. About 35 minutes after the loss of power to the railway, they were captured on closed circuit television dragging a tool box on wheels a little distance away from the railway. The track marks were followed to a housing estate close to where the appellants lived. The tool box was recovered from Kershaw's garden when he was arrested.[8]In relation to this, when interviewed, both said they had some involvement with the cable but it did not amount to theft and they had not actually taken anything away from the railway itself.[9]The cable which was stolen on count 1 was sold for £33 and the cable stolen on count 2 sold for £36. However, the cost of replacing the cable and the cost of disruption to the railways was far in excess of those figures. The cable and the workmanship on count 1 cost £1,777 in terms of replacement and £920 on count 2. The cost of disruption to the railway company was estimated to be £25,000 and, on the first occasion in particular, it caused extensive delay to the railways and huge disruption to passengers.[10]A basis of plea was advanced on 9th September 2010 from Mr Kershaw suggesting that he and Manion had jointly appropriated cable from the proximity of the railway line which they both had transported away to be weighed for scrap metal.[11]Between the offending and the sentence for the thefts, on 22nd March 2010, at the Rotherham Magistrates' Court, Kershaw appeared for an offence of burglary and was sentenced to a six month community order with supervision and a 30 day programme requirement. On 9th July, at the same Magistrates' Court, for one of offence of theft, the appellant was sentenced to 16 weeks' imprisonment, suspended for 12 months, with 100 hours unpaid work requirement and a 30 day programme requirement and on 2nd September 2010 the appellant Kershaw admitted breach of a community order and a suspended sentence order and it was at that stage that the 16 week imprisonment, which had been suspended, was activated and ten weeks imprisonment consecutive imposed for breach of a community order.[12]Their antecedents are as follows. Manion, born in July 1980, had 13 previous dates of conviction for 28 offences, for multiple offences of burglary including dwelling house burglary, handling stolen goods, a number of thefts, thefts from a person, vehicle taking and thefts from vehicles. Kershaw, born in 1979, had 32 previous dates of conviction with 74 offences. The majority of his convictions were for driving offences, but they did include theft of a vehicle, taking a vehicle without consent, two burglaries (both non-dwelling), handling stolen goods, theft or attempted theft five times, and obtaining or attempting to obtain property by deception five times. So in each case these appellants have considerable criminal records involving extensive dishonesty.[13]The pre-sentence report in relation to Mr Manion suggested that he recognised the impact in terms of disruption and damage to the railway service, noted his record and suggested he would struggle with a prison sentence; that there were family responsibilities which would be disrupted, suggested that he was remorseful but that there was a medium risk of re-offending. The judge was able to see not only that report but a letter from his partner, a Ms Knight.[14]In relation to Kershaw, the pre-sentence report suggests that he was attempting to minimise his role in relation to the offending. He suggested that he helped Manion to remove the cable but did not help to cut it up and made other points which do not appear to us to be attractive or to help his position in relation to the sentence which had to be passed, since he was clearly seeking to minimise his role where he thought he could. He said that he had not understood the financial and safety impacts of the removal of cable. He was not working, although he had considerable experience and skills in building. He was a longstanding amphetamine abuser and there was a history of domestic violence. He was already serving imprisonment for the breach of suspended sentence. There was thought to be a medium risk of harm to the public from future offending, which was likely to occur.[15]In passing sentence, the learned judge emphasised a number of points about the offending: that theft of signal cable was very prevalent in the area; that there was almost weekly disruption of trains in South Yorkshire from this cause, with thousands of pounds of losses; that the losses here were more than £25,000; that there was a need for deterrent sentences for this kind of offending; that he would give credit for late pleas entered on the day of trial; that the appropriate sentences as a consequence were those of three years.[16]The points advanced on behalf of the appellants are as follows. Firstly, on behalf of Manion, that insufficient credit was given for pleas, that credit should have been substantial, and that there was a letter indicating a plea sent on the third week of August 2010, the offences being in January and the trial on 9th September. Secondly, that the criminal record in his case had been overstated: whilst it was unattractive, it was not as bad as the judge had suggested. Thirdly, that his previous prison sentences were all short, with a maximum of five months. Fourthly, he was remorseful. Fifthly, he did not realise the impact. Sixthly, that the personal mitigation identified had not sufficiently been taken into account and, in the light of all that, the inferred starting point was too high at more than three years. It was suggested the judge must have started at three and a half or four years.[17]In relation to Kershaw, the complaints were that too high a starting point was taken, that there was too great an emphasis on deterrence and specifically on deterrence by reference to local conditions, which it was suggested was a breach of the Sentencing Guidelines Council's Guidelines on Overarching Principles, published in December 2004, the relevant passage being at paragraph 1.39. It was next suggested that the sentences were out of kilter with a rather different authority dealing with stripping lead from the roofs of colleges. No allowance was given for a guilty plea and that totality had not been taken into account as it should have been.[18]Since sentence was passed in this case, this court has seen prison reports in relation to each of these appellants, but in neither case do they carry the matter any further: nothing negative is noted, but nor is there anything particularly positive which could affect the outcome.[19]We make it clear that in our judgment the decision in this case is not helped by very different authority about removing lead from public buildings.[20]The starting point here is key. It is clear that the judge was aware of local conditions, as he recited in the course of his remarks, but the evidence in the case emphasises, with considerable detail, the national importance of this kind of offending. The evidence bearing on the offence on 12th January from a Mr Brown makes the following clear:
"On the first incident mentioned, 1 train was cancelled, 127 trains were affected with a total delay of 1240 minutes. The cost for the delays only was £25,077.99. This does not include the materials and manpower in repairing the cable."
Mr Brown went on to say that in relation to the later offence there were 46 minutes of delay to trains in the area and that was what gave rise to the consequential cost to the railway operations.[21]Also available was the evidence of a Mr Peter Guy, Head of Operational Security and Continuity Planning for Network Rail, who was able to give a national view of the impact of this kind of offending. Amongst other things he said this:
"Since the rise in the global price of copper which began in 2004, NR [National Rail] have experienced over a 300% increase in the theft of copper signal and power cable, as well as other metals. Copper cables have been stolen from the side of the railway track and from our storage depots. The impact of such thefts on the company, our staff and the travelling public has been significant both in terms of financial loss and personal hardship."
[22]Later he emphasised how repairs after theft of cable from the lineside usually required motor vehicles for transportation to get access to the trackside and sometimes the track itself. This has historically given rise to dangerous collisions between vehicles and trains which would otherwise be wholly avoidable. Large amounts of cable are stolen from storage depots and there is a real impact on rail networks' capacity to replace stolen lineside cables. Such is the demand, suppliers are finding it difficult to meet the demand for more cable for such replacement in a reasonable time. In financial terms, he goes on:
"... compensation for delays and additional security provisions are costing [National Rail] approximately £15 million each year."
[23]In our judgment, there is ample evidence of a high degree of disruption caused by this kind of offending nationally. Set against that body of evidence before the judge, comment by him as to the frequency of offending in his local area does not breach any principle set out in the guidelines. His emphasis was on the degree of disruption more than the local prevalence.[24]All that said, as we have already indicated in the course of argument, we do accept the principle submission advanced here that the starting point was somewhat too high, producing sentences of three years after a plea of guilty. It seems to us that the appropriate starting point is two years' imprisonment for offending of this kind. The appropriate reduction here for pleas of guilty entered, as they were, only in the face of a trial, was 10 per cent.[25]Accordingly, the appropriate sentences here are sentences of 22 months' imprisonment on each count, to be served concurrently in respect of each appellant, and in Kershaw's case, as already noted, he will serve that sentence consecutive to the sentences he was already serving.[26]To that extent, these appeals are allowed.[27]MR SANDFORD: My Lord, I think it is only right that I should just say this, that there is one factual inaccuracy in the summary so far as Kershaw's sentence from the start of September last year in the Magistrates' Court. It was ten weeks coupled with 16 weeks. A total of 26 weeks or six months was imposed, rather than the ten months which was indicated in the summary.[28]MR JUSTICE IRWIN: I am grateful. Can you just take me to the passage in the summary, so that I can correct that when the judgment is perfected? I see, it is towards the bottom of the third paragraph.[29]MR SANDFORD: Yes, it says 2nd September at the Crown Court at Sheffield. That is wrong, it was the Rotherham Magistrates' Court.

MR JUSTICE IRWIN: Right.

[31]MR SANDFORD: And 16 weeks imprisonment for the suspended sentence was activated, that is right, and it was ten weeks' imprisonment consecutive for the breach of the community order. A total of 26 weeks to run from 2nd September.[32]MR JUSTICE IRWIN: I am very grateful. I will make sure that is corrected.

Cited in 1 later judgment