Douglas, R. v [2011] EWCA Crim 2628

[2011] EWCA Crim 2628Case No 2011/2333/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION(
Venue Royal Courts of JusticeDate Tuesday, 25 October 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE MILFORD QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
KEVIN DOUGLAS
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 J Wainwright appeared for Appellant
J U D G M E N T
[1]MR JUSTICE OPENSHAW: On 15th March 2011 in the Crown Court at Kingston upon Thames, following conviction upon a charge of theft after a trial before His Honour Judge Mitchell and a jury, the appellant was sentenced to three-and-a-half years' imprisonment. An indefinite anti-social behaviour order was made. He now appeals against sentence by leave of the single judge.[2]The facts are as follows. The appellant was a self-styled antiques dealer. He drummed up business by cold-calling private houses. On 15th December 2008 he called at a house in Hammersmith, the home of an elderly couple, Mr and Mrs Reid, who were respectively aged 84 and 78. He knocked on the door and asked Mrs Reid if she had any old books that he could buy. It is not at all clear that he had the slightest intention of buying books; it was a ruse to gain entry. She invited him in. He said he would come back a little later, which he did within an hour and a half. Again he was invited in. She showed him some books but he said he was not interested in what he had seen. He then started looking around the house. Mrs Reid followed him as he moved from room to room opening drawers and looking in cupboards. Mrs Reid was unhappy about this and eventually objected. In one room Mrs Reid became particularly concerned because he had found a valuable brooch which she had kept hidden in a secret compartment in a drawer. He rummaged through more drawers before he went downstairs, but there he did buy some items from her. He gave no receipt and then left. After he had gone Mrs Reid discovered that two watches that had belonged to her father were missing from the top shelf of the cupboard in her bedroom.[3]On 12th February 2009 the appellant was arrested at his home address in Hove. When interviewed he denied stealing the watches. He unattractively claimed at the trial that Mr Reid, aged 84, had sold them to him without telling his wife. The watches were never recovered. He said that he had sold them on for £100 but there was no documentary record of that sale.[4]The defendant is aged 54. He has one conviction of theft committed in similar circumstances in 1985, more than 25 years ago. He then received a sentence of 12 months' imprisonment.[5]The judge, who of course had the advantage of hearing the trial, formed a very adverse view of the appellant. He said that he had plainly targeted people who were vulnerable by reason of their age. He said that he had exploited them and overborne their will which he likened to the use of force. He stressed the similar facts of the earlier conviction. He even described his behaviour as "repellent". He concluded that he was justified in sentencing outside the guidelines and passed, as we have already said, a sentence of three-and-a-half years.[6]The short point now taken on the appeal is that even with the aggravating features which we have identified, the total sentence of three-and-a-half years was far outside the guidelines for simple theft and was manifestly excessive for the theft of watches worth only £100.[7]This was an exceedingly mean and unpleasant offence. These were vulnerable victims who were targeted and then exploited. It is not right to argue that the loss was only £100 because that figure depends upon the appellant himself and there is nothing to support his worthless word. He does have a significant previous conviction, but that was all of 25 years ago. We do not think that it is right to apply the guidelines for simple theft from a vulnerable victim. This was more akin to a distraction burglary for which very much longer sentences are appropriate or at least it was the theft from a vulnerable victim involving the use of a deception, the deception being that he was a genuine antiques dealer whereas he was in fact a rogue.[8]In our judgment this sentence may be high but it is not manifestly excessive and that part of the appeal is dismissed.[9]At the end of his sentencing remarks, the judge, seemingly on his own initiative, canvassed with counsel the possibility of imposing an anti-social behaviour order. After some discussion an order was made in these terms:
"Firstly, the defendant must not enter any premises privately owned other than those of his family and friends without prior written permission. Two, such written permission must be retained by him for inspection for a period of five years from the date of such permission. If written permission is provided, where any item is purchased, a written receipt must be provided to the vendor and an exact copy retained by the defendant."
[10]Although the terms of the ASBO are not appealed against, it seems to us that there are a number of flaws in that order and on reflection counsel asks for and we grant leave to appeal that part of the order. There are, as it seems to us, a number of problems with the order. First, how does one identify premises which are privately owned? Does this mean privately owned by an individual? What about property owned by a private company? Does it mean just owned? What about property which is rented? If he enters a privately owned corner shop does he require written permission? If he goes every day to buy a newspaper must he keep a file of these permissions and indeed of the purchase of the paper for five years? The order is said to run indefinitely, which in any event seems to us to be far too long. This order is vague and is in effect unworkable. It will accordingly be quashed in its entirety. To that extent the appeal succeeds.