Key factors: Theft – breach of trust

This guideline and accompanying notes are taken from the Sentencing Guidelines Council’s definitive guideline Theft and Burglary in a building other than a dwelling, published 9 December 2008

Key factors

1. When assessing the harm caused by this offence, the starting point should be the loss suffered by the victim. In general, the greater the loss, the more serious the offence. However, the monetary value of the loss may not reflect the full extent of the harm caused by the offence. The court should also take into account the impact of the offence on the victim (which may be significant and disproportionate to the value of the loss having regard to their financial circumstances), any harm to persons other than the direct victim, and any harm in the form of public concern or erosion of public confidence.
2. In general terms, the seriousness of the offence will increase in line with the level of trust breached. The extent to which the nature and degree of trust placed in an offender should be regarded as increasing seriousness will depend on a careful assessment of the circumstances of each individual case, including the type and terms of the relationship between the offender and victim.
3. The concept of breach of trust for the purposes of the offence of theft includes employer/employee relationships and those between a professional adviser and client. It also extends to relationships in which a person is in a position of authority in relation to the victim or would be expected to have a duty to protect the interests of the victim, such as medical, social or care workers. The targeting of a vulnerable victim by an offender through a relationship or position of trust will indicate a higher level of culpability.
4. The Council has identified the following matters of offender mitigation which may be relevant to this offence:
   1. Return of stolen property – Whether and the degree to which the return of stolen property constitutes a matter of offender mitigation will depend on an assessment of the circumstances and, in particular, the voluntariness and timeliness of the return.
   2. Impact on sentence of offender’s dependency – Where an offence is motivated by an addiction (often to drugs, alcohol or gambling) this does not mitigate the seriousness of the offence, but a dependency may properly influence the type of sentence imposed. In particular, it may sometimes be appropriate to impose a drug rehabilitation requirement, an alcohol treatment requirement (for dependent drinkers) or an activity or supervision requirement including alcohol specific information, advice and support (for harmful and hazardous drinkers) as part of a community order or a suspended sentence order in an attempt to break the cycle of addiction and offending, even if an immediate custodial sentence would otherwise be warranted.
   3. Offender motivated by desperation or need – The fact that an offence has been committed in desperation or need arising from particular hardship may count as offender mitigation in exceptional circumstances.
   4. Inappropriate degree of trust or responsibility – The fact that an offender succumbed to temptation having been placed in a position of trust or given responsibility to an inappropriate degree may be regarded as offender mitigation.
   5. Voluntary cessation of offending – The fact that an offender voluntarily ceased offending before being discovered does not reduce the seriousness of the offence. However, if the claim to have stopped offending is genuine, it may constitute offender mitigation, particularly if it is evidence of remorse.
   6. Reporting an undiscovered offence – Where an offender brings the offending to the attention of his or her employer or the authorities, this may be treated as offender mitigation.
5. In many cases of theft in breach of trust, termination of an offender’s employment will be a natural consequence of committing the offence. Other than in the most exceptional of circumstances, loss of employment and any consequential hardship should not constitute offender mitigation.
6. Where a court is satisfied that a custodial sentence is appropriate for an offence of theft in breach of trust, consideration should be given to whether that sentence can be suspended in accordance with the criteria in the Council guideline New Sentences: Criminal Justice Act 2003. A suspended sentence may be particularly appropriate where this would allow for reparation to be made either to the victim or to the community at large.