Charles Matthews [2019] EWCA Crim 1420
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**Regina v Charles Frederick Matthews** [2019] EWCA Crim 1420 was an appeal against sentence heard by the Court of Appeal (Lord Justice Males, Mr Justice Jay and Mr Justice Edis). The appellant’s conviction for handling stolen goods was not in issue; the appeal concerned the length of his custodial sentence and a director disqualification order.
Mr Matthews had been convicted on 11 January 2019 in the Crown Court at Southwark and sentenced on 25 January by Her Honour Judge Korner QC to four and a half years’ imprisonment. He was also disqualified from acting as a company director under the Company Directors Disqualification Act 1986 for ten years. He appealed against sentence with leave.
The handling offence arose from a burglary committed over the August 2010 Bank Holiday weekend at Chatila, a high-end jewellery store in Bond Street, London. Approximately one million pounds’ worth of jewellery and precious stones had been stolen from display cases; the burglars had targeted an office safe containing forty million pounds’ worth of jewellery but had been unable to access it. The burglary was carried out by a group including Jones, who would later be involved in the Hatton Garden Safe Deposit burglary of April 2015 using similar methods.
On 5 August 2015 police searched the appellant’s business premises, London City Metals, a scrap metal dealership in Factory Road, E16. Hidden behind a removable ceiling tile in his office was a plastic bag containing fifty diamonds, two emeralds and a jewel-encrusted bangle. The bangle was unique and was positively identified as having been stolen from Chatila. The emeralds matched exactly two that had been set in a pair of earrings stolen from the same shop. The diamonds were highly consistent in size, colour and clarity with those present on items such as watches, earrings and pendants stolen from Chatila. The appellant’s fingerprint was on a plastic grip-sealed bag containing one of the emeralds. Also in the office were a jeweller’s loop (a magnifying glass used to examine jewellery) and a gemologist’s testing kit. The value of the recovered items was put at approximately eighty-two thousand pounds. The appellant gave evidence that he had acquired the jewellery at the end of 2014.
Mr Matthews was aged fifty-five at sentence and had twelve convictions spanning 1979 to 2017. His relevant previous convictions included handling in 1979 and 1996, and fraudulent evasion of Value Added Tax in 1996. A pre-sentence report assessed him as presenting a low likelihood of reoffending and a low risk of harm, describing him as suitable for unpaid work and able to be managed in the community.
The judge found that the case fell within category 2A of the Sentencing Council’s Definitive Guideline for handling stolen goods (category 2 harm, because the value lay between ten thousand and one hundred thousand pounds, and category A high culpability). The starting point for such an offence was three years’ imprisonment with a range of eighteen months to four years. The judge treated the offence as professionally planned and sophisticated, took account of the appellant’s previous convictions for dishonesty (though stale) and the value of the items, and found the appellant to be a professional handler in the sense that he was known to be willing to purchase goods of high value. She noted that he had bought just over one tenth of the total quantity stolen and had valuation equipment in his office. The judge concluded that it must have been clear from the nature of the items that they came from a jeweller. She accepted that there had been substantial delay between charge and conviction, through no fault of the appellant’s, and made an allowance of six months on that account. She considered the offence so serious that it took it marginally outside the sentencing range and imposed four and a half years’ imprisonment. The judge also concluded that the offence was connected to the appellant’s management of the company and made the ten-year disqualification order.
On behalf of the appellant, Mr Martin Bromley-Martin QC (with Mr Peter Caldwell) advanced two grounds. First, the sentence was manifestly excessive: the judge had erred in failing properly to apply the guideline and in failing to inform counsel that she intended to depart from it. There was no evidence that the appellant had advance notice of the original theft or that he had been in recent possession of the items. It was submitted that high culpability (category A) did not apply because the offence was not professional and sophisticated; the judge had conflated the professional character of the burglary with the appellant’s own conduct and had effectively double-counted the value of the goods by allowing it to infiltrate her assessment of culpability. The case was at most category 2B (medium culpability, range up to eighteen months), though counsel accepted that the previous convictions were an aggravating factor. There was considerable personal mitigation: the daughter of the appellant’s partner was significantly dependent on him for care and support and suffered from a condition said to be exacerbated by separation anxiety; there was evidence of substantial charitable giving over the years; and the appellant had sold his business in 2017 and relocated. The judge’s adjusted starting point must have been of the order of six years before mitigation, yet she had not explained why she departed from the guideline nor indicated her provisional intention to do so. Secondly, the disqualification order was wrong in principle and manifestly excessive in duration; there was no or no sufficient evidence that the appellant had abused his status as a director or that there was a connection between his conduct and the management of a company.
The Court of Appeal held that the judge had been entitled to place the offence in category A. It was an irresistible inference that the appellant was aware in general terms of the source of these high-value items, that his supplier knew the appellant was the sort of person who would be prepared to buy them at a substantial sum, and that the appellant calculated he would and could make a profit. The paraphernalia found at his premises strongly supported that last inference. The court did not underestimate the difficulties in selling such items without risk of apprehension. The offence had all the hallmarks of being a sophisticated offence in addition to being a professional one. In terms of harm, the case was at the higher end of category 2.
On a direct application of the guideline, the range for category 2A was up to four years. The judge had not explained why the case fell into a higher category, nor had she given counsel the opportunity to address her provisional view. There were no relevant factors in play which might have taken the case above four years for a category 2A offence. Going outside the category range in these circumstances led to the imposition of a sentence which was wrong in principle as well as being manifestly excessive. The available mitigation, including the delay, clearly carried some weight; on the other hand, there were additional aggravating features given the appellant’s relevant previous convictions and the seriousness of the underlying offence. Balancing the aggravating and mitigating factors should have led to a sentence towards the top of the category range but not at the very top. The right sentence was three and a half years’ imprisonment.
On the disqualification issue the court accepted the appellant’s submission that there was no connection between the offence and his activities as a company director, nor was there any evidence that he had abused his position in that regard. The fact that the items were hidden on company premises did not constitute the relevant nexus. The appeal was therefore allowed to the extent that a sentence of three and a half years’ imprisonment was substituted and the disqualification order was quashed.
In short, the Court of Appeal reduced the sentence from four and a half years to three and a half years because the judge had gone outside the guideline range without adequate justification, and quashed the director disqualification order for lack of the necessary connection between the offence and the company management.