- The guideline Theft and Burglary in a building other than a dwelling, published by the Sentencing Guidelines Council 9 December 2008 covers four forms of theft. However, the principles relating to the assessment of seriousness in the guideline are of general application and are likely to be of assistance where a court is sentencing for a form of theft not covered by a specific guideline. These are summarised below for ease of reference.
Assessing seriousness
(i) Culpability and harm
- As it is an essential element of the offence of theft that the offender acted dishonestly, an offender convicted of theft will have a high level of culpability. Even so, the precise level of culpability will vary according to factors such as the offender’s motivation, whether the offence was planned or spontaneous and whether the offender was in a position of trust. An offence will be aggravated where there is evidence of planning.
- When assessing the harm caused by a theft offence, the starting point is normally based on the loss suffered by the victim. Whilst, in general, the greater the loss, the more serious the offence, 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 significantly greater than the monetary value of the loss; this may be particularly important where the value of the loss is high in proportion to the victim’s financial circumstances even though relatively low in absolute terms), any harm to persons other than the direct victim, and any harm in the form of public concern or erosion of public confidence.
(ii) Aggravating and mitigating factors
- The most common factors that are likely to aggravate an offence of theft are:
- factors indicating higher culpability: planning of an offence, offenders operating in groups or gangs, and deliberate targeting of vulnerable victims
- factors indicating a more than usually serious degree of harm: victim is particularly vulnerable, high level of gain from the offence, and high value (including sentimental value) of property to the victim or substantial consequential loss
(iii) Offender mitigation
- The Council has identified the following matters of offender mitigation that might apply to offences of theft:
- Return of stolen property – depending on the circumstances and in particular, the voluntariness and timeliness of the return.
- 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.
- 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.