Danny Ross [2019] EWCA Crim 1647

Danny Rex Ross [2019] EWCA Crim 1647 concerned an appeal against sentence by leave of the single judge, which the Court of Appeal (Lady Justice Rafferty, Mr Justice Jeremy Baker and Mrs Justice McGowan) dismissed.

Mr Ross had pleaded guilty before magistrates to five offences of theft contrary to sections 1 and 7 of the Theft Act 1968 and six offences of breach of a Criminal Behaviour Order contrary to section 30 of the Anti-social Behaviour (Crime and Policing) Act 2014. On 18 February 2019 he was committed for sentence to the Crown Court pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 7 March 2019 at Gloucester Crown Court he was sentenced to four months’ imprisonment for the thefts and 28 months’ imprisonment for the breaches, all concurrent. A suspended sentence of 12 weeks imposed on 30 January 2019 for attempted theft, theft and breach of a Criminal Behaviour Order was activated to the extent of two months consecutive, making a total of 30 months’ imprisonment.

The offences all occurred in February 2019. Mr Ross was subject to a Criminal Behaviour Order prohibiting him from entering various retail premises in Gloucestershire. He entered a Marks & Spencer store and placed a packet of steaks on a shelf after realising he had been noticed. At Budgens he placed meat worth just under £58 into his rucksack. On a separate occasion at Budgens he attempted to cover his face with a carrier bag whilst putting meat into his bag, and when challenged returned four packets of sirloin steak. At Marks & Spencer he was about to place biscuits into his rucksack but realised he had been noticed and returned the biscuits and some alcohol to the shelf. At Tesco Extra he concealed six bottles of gin and other items in his rucksack, which he had lined with foil taken from the shop to defeat security alarms. When challenged by staff he removed the gin bottles, a packet of crisps and a half-eaten doughnut. Finally, at Waitrose he took gin and toothbrush heads before being arrested nearby. Goods totalling just under £260 were recovered. In interview he admitted the thefts but denied knowledge of the Criminal Behaviour Order. He subsequently admitted breach of both the suspended sentence and the Criminal Behaviour Order.

The sentencing judge expressed sympathy for Mr Ross’s background. Both his parents had been heroin addicts and both had died, his father in front of him. The judge noted that the criminal justice system had made considerable efforts to assist him with his drug problem, as his record showed. However, the judge stated that there was a limit to the system’s compassion and that custody was unavoidable given the scale of the offending and the breach of the order so shortly after its imposition, with a sequence of thefts sometimes occurring twice on the same day. The judge observed that Mr Ross, aged 25, had an extraordinary record and would remain a significant risk until he addressed the tragedies in his life. He received one-third credit for his guilty plea, which was treated as his only mitigation. Applying the Sentencing Council guideline for breach of court orders, the judge categorised the matter as Category 1A, representing persistent breach so soon after the order was made. The starting point was two years with a range of one to four years. Aggravating features were his previous convictions, the short interval between the order and its breach, his history of disobeying court orders, and the fact that the breaches involved further offending. The starting point was increased to three and a half years, reduced to 28 months after credit for plea. For each theft a sentence of four months reduced from six was imposed. All sentences were concurrent and concurrent with the breach sentences because they formed part of the offending pattern and had already been taken into account in increasing the starting point. The suspended sentence was activated as to two months only, bearing in mind totality. The judge concluded that suspension of the entire term was impractical given the appellant’s history and that immediate custody was the only option.

Mr Ross was 25 at sentence, born on 9 July 1993. He had 42 convictions between 2009 and 2019, including 62 for theft and kindred offences, and a history of breaching court orders.

The grounds of appeal were that the judge made insufficient allowance for the appellant’s age and mitigation, and that the starting point adopted for the breach offences was too high.

The Court of Appeal rejected both grounds. On the second ground, Lady Justice Rafferty noted that the Sentencing Council guideline required harm to be assessed by weighing all factors in the case. The persistence and shamelessness of the breaches, viewed through the lens of the further breach of the January 2019 suspended sentence order, amply illustrated why the matter was appropriately positioned. As to the first ground, the structured sentencing remarks were held to be unimpeachable. The appellant’s age and mitigation were amply reflected in the sentence. In short, the appeal was dismissed, the categorisation and uplifted starting point being justified by the persistent and brazen nature of the breaches committed almost immediately after previous court orders.