Neutral Citation Number: [2011] EWCA Crim 1652
Case No: 201100708A7 & 20110797A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
HHJ TEARE
T20107637
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/07/2011
Before :

LORD JUSTICE HOOPER
MR JUSTICE MACDUFF
and
HIS HONOUR JUDGE THORNTON QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between :

	(1)	BILLY RICHARD MITCHELL
(2)	DAMIEN ANTHONY KELHAM	
Appellants	
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	THE CROWN	Respondent	

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MR. C. JEYES appeared for the First Appellant.
MR. G.A.M. PURCELL appeared for the Second Appellant.
The Respondent was unrepresented.

Hearing date: 30th June 2011
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Judgment

LORD JUSTICE HOOPER : 
1.	On 7 January 2011 at the Crown Court at Nottingham (HHJ Teare) the appellants Kelham and Mitchell pleaded guilty to count 3, damaging railway cabling belonging to Network Rail and count 4, theft of railway cabling from network Rail.  
2.	On 3 February 2011 Mitchell also pleaded guilty on re-arraignment to count 1, damaging railway cabling belonging to Network Rail and count 2, theft of railway cabling from network Rail. 
3.	Both appellants were given (so it appears) the full discount for their pleas.
4.	Mitchell was sentenced on counts 2 and 3 to 3 months’ imprisonment on both concurrent. On counts 2 and 4 he was sentenced to 3 years’ imprisonment on both concurrent and concurrent to the sentences on counts 2 and 3. The total sentence was therefore one of 3 years’ imprisonment, with a direction under section 240 of the Criminal Justice Act that 117 days spent on remand should count towards the sentence.
5.	Kelham was sentenced on count 3 to 3 months’ imprisonment. On count 4 he was sentenced to 3 years’ imprisonment concurrent to the sentence on count 3. The total sentence was therefore one of 3 years’ imprisonment, with a direction under section 240 of the Criminal Justice Act that 117 days spent on remand should count towards the sentence. Kelham admitted to being in breach of a suspended sentence order comprising 10 weeks’ imprisonment suspended for 12 months, imposed on 6 October 2010 at Newark Magistrates’ Court for burglary involving the theft of cable.  For this he received a sentence 10 weeks’ imprisonment. The total sentence was therefore one of 3 years’ imprisonment, with a direction under section 240 of the Criminal Justice Act that 117 days spent on remand should count towards the sentence. The total sentence was therefore a sentence of imprisonment for 3 years 10 weeks, with a direction under section 240 that 117 days spent on remand should count towards the sentence
6.	The offences related to the theft of and damage to cabling on the East Coast mainline railway near a junction outside Newark. There had been a spate of offences committed around that stretch of the track and the offences in this case took place on 8 October 2010. At about 8am that morning, Network Rail became aware of a signalling failure in the area and when engineers attended at the scene, they found that about 15 metres of signal control high voltage cable had been stolen from near the junction. The subsequent investigation revealed that Mitchell had stolen that cable and visited a scrap metal dealership in Newark shortly after the theft had taken place and he had been paid £44 for the cable. (Counts 1 and 2)
7.	As a result of Mitchell’s actions there were serious and significant delays to services but whilst the engineers were at the trackside in the afternoon, they became aware of further damage to the track and they found a further section of some 30 to 40 metres of cable had been sawn through and was in the process of being removed. They saw Mitchell was nearby and summoned the police. A significant pursuit of the appellants took place involving police dogs and a helicopter before the police managed to track both appellants down and found them hiding some distance away. They were arrested (Counts 3 and 4).
8.	Network Rail had had to close that stretch of mainline causing delays and cancellations of services. As a result of their safety policy, failsafe systems brought trains to a halt, level crossings closed automatically and a conservative estimate of the loss caused to Network Rail was at least £75,000.
9.	When interviewed, Mitchell accepted his involvement to an extent but Kelham denied any involvement. 
10.	Both are in their mid-twenties. Mitchell has a history of class A drug addiction and alcohol addiction. Both are or have been addicts and stole to pay for their addiction. Both have been unemployed for some time. 
11.	Both appellants had significant criminal records. Mitchell’s record of eighteen previous convictions include robbery, assault, arson, four previous convictions for theft, two for burglary, one for going equipped for theft and one for damaging property. The current offence was committed shortly after release from a 12 week custodial sentence imposed on 16 August 2010 for a burglary (non-dwelling) committed whilst on bail and involving the theft of copper piping from a warehouse and was committed before the sentence expiry date.  Mitchell also committed the current offence whilst subject to a conditional discharge imposed on 20 August 2001 for an offence of criminal damage, also committed on bail.
12.	Kelham’s record included four previous convictions for burglary and three for theft.  Kelham committed these offences two days after receiving the suspended sentence. Kelham had also been involved in the theft of copper in April 2010.
13.	Mitchell’s pre-sentence report dated 26 January 2011 recommended a Community Order with requirements of supervision, unpaid work and a programme. There was a high risk of him re-offending and the risk of him re-offending would increase if he were to resume consuming alcohol to excess. He was able to demonstrate insight into the consequences of his behaviour and expressed his regret at the potential jeopardy he caused to rail users,
14.	Kelham’s pre-sentence report dated 26 January 2011 stated there was no realistic alternative to a custodial sentence. There was a high risk of him re-offending and that would remain until he addressed his misuse of drugs. He now expressed regret for the jeopardy he had placed the users of the railway in and expressed relief that no serious injuries resulted from his grossly irresponsible behaviour.
15.	In passing sentence the judge said that they both had a string of previous convictions and on 8 October had decided to steal some copper cable for either drink or drugs. The value of the cable was under £100 and would only have kept them in drink or drugs for a couple of days. They had decided to take the cable from Network Rail and anyone would have thought they would have realised the massive inconvenience that would cause. It was probable that hundreds or thousands of people had been inconvenienced but neither of them had thought about that. They only had their foolishness to blame for the sentences that would be imposed because the effect of their actions on the public could not be ignored. The mitigating factors were their admissions and eventual pleas and the fact they had not realised the extent or value of the damage they had caused, let alone the inconvenience. Nevertheless, a deterrent sentence had to be imposed so that other people did not trespass on the railway and steal signalling cable. They would receive credit for their pleas.
16.	The starting point before credit for the pleas must have been one of 4 ½ years’ imprisonment.  It is submitted that that is manifestly excessive.
17.	In the case of Kelham it is submitted that the judge should have passed a lower sentence to reflect the fact that he was facing only two counts. Although the judge did not explain why he had made no such reduction, Kelham had committed the offence within 2 days of the imposition of a suspended sentence for a similar offence. That in our view justified the same sentence for both appellants.
18.	We looked at the Sentencing Guidelines for theft, but they are of only limited help.  Cases of theft of cable etc alongside railways do not sit easily within any of the guidelines because of a combination of unusual circumstances; the value of the goods and the gain to the thieves is relatively small; whereas the cost to the railway company is disproportionately large and the disruption to the travelling public is enormous.
19.	We note that Guideline, relying on section 143(1) of the Criminal Justice Act 2003, states in paragraph 5 that the primary factor in considering sentence is the seriousness of the offence which is determined by assessing the culpability of the offender and any harm which the offence caused, was intended to cause or might foresee ably have caused.  Whatever the state of mind of the appellants vis a vis the harm caused by their actions, it is difficult to see how they were other than reckless as to the harm that would be caused in removing cable of this kind.   In paragraph 6 it is stated that the starting point should be the loss suffered by the victim, which can properly be said to be in the region of £75,000 and that does not include the unquantifiable financial losses caused to the stranded passengers, as well as the enormous inconvenience. 
20.	It is submitted on behalf of Mitchell that the current case was of a similar or lower level of seriousness to Austin [2009] 2 CR App R (S) 74 which involved  graffiti on railway carriages and the heavy costs involved in its removal, some £60,000.  In our view the index offences are considerably more serious.
21.	Significance is attached by counsel for the appellants to the word “deterrence” used by the judge and it is submitted that the judge was passing a higher sentence than would otherwise be justified because of local prevalence. This argument fails if for no other reason that any rail traveller or any reader of newspapers knows that thefts of the kind with which we are concerned are of nationwide prevalence.  
22.	Particular reliance is placed on Manion and Kershaw [2011] EWCA Crim 234, decided coincidentally on the day before HHJ Teare passed sentence. 
23.	Before we were shown that case it was our provisional view that the appropriate sentence for the two appellants after trial and given their appalling current records of offences including thefts of metals should have been at least 3 years’ imprisonment and not the 4 ½ years considered by the judge to be appropriate. Quite apart from any deterrent value such a sentence might have on the appellants themselves and others minded to commit this kind of offence and quite apart from the necessary punitive value of such a sentence, Network Rail, the travelling public and other victims of their offending are entitled to a measure of protection from them in the future.   Furthermore, the appellants need to learn to abstain from drugs and excessive alcohol. We were told that the appellants have made some progress in this area. Not only do we take into account the costs and inconvenience we also take into account that Network Rail is very vulnerable this kind of attack – there is no way that it can sensibly protect itself against attacks of the kind with which we are concerned.
24.	We turn to Manion and Kershaw.  
25.	The appellants had pleaded guilty on re- arraignment to two counts of theft and had been sentenced to 3 years’ imprisonment. The facts were:
4. … At about 2.45am on 12th January 2010, there was a total loss of power to railway lines in the area of Rotherham, South Yorkshire.  A large amount of signalling cable had been stolen.  There is some doubt as to the precise lengths, but it was a considerable quantity.  
5. The following morning, police officers made inquiries at a local scrapyard and inside one of the metal bins was found a piece of cable matching the cable taken.  Two males had brought the cable into the yard.  The receipt for the cable was in the name of W Kershaw, with what was later found to be the appellant Kershaw's old address.  
6. Both the appellants were arrested after the second offence but, when arrested, Mr Kershaw said in relation to this offence that he had not been at home and the receipt was not his.  In a subsequent interview, he said that he had been out on the night in question and had dragged some cable away from a location close to the railway.  Manion, in relation to this offence, said that he had had some involvement with the wire but denied that what he had done amounted to theft.
7. The offending underlying count 2 can be summarised as follows.  On 14th January 2010, these appellants stole a further considerable length of cable valued at around £900.  About 35 minutes after the loss of power to the railway, they were captured on closed circuit television dragging a tool box on wheels a little distance away from the railway.  The track marks were followed to a housing estate close to where the appellants lived.  The tool box was recovered from Kershaw's garden when he was arrested.
7. In relation to this, when interviewed, both said they had some involvement with the cable but it did not amount to theft and they had not actually taken anything away from the railway itself.
8. The cable which was stolen on count 1 was sold for £33 and the cable stolen on count 2 sold for £36.  However, the cost of replacing the cable and the cost of disruption to the railways was far in excess of those figures.  The cable and the workmanship on count 1 cost £1,777 in terms of replacement and £920 on count 2.  The cost of disruption to the railway company was estimated to be £25,000 and, on the first occasion in particular, it caused extensive delay to the railways and huge disruption to passengers.  
26.	Both had, like the appellants, appalling records of dishonesty.
27.	The court referred to the evidence of Mr Guy, Head of Operational Security and Continuity Planning for Network Rail, who was able to give a national view of the impact of this kind of offending.  He said:
Since the rise in the global price of copper which began in 2004, NR [National Rail] have experienced over a 300% increase in the theft of copper signal and power cable, as well as other metals.  Copper cables have been stolen from the side of the railway track and from our storage depots.  The impact of such thefts on the company, our staff and the travelling public has been significant both in terms of financial loss and personal hardship.
28.	In the words of the court:
Later he emphasised how repairs after theft of cable from the lineside usually required motor vehicles for transportation to get access to the trackside and sometimes the track itself.  This has historically given rise to dangerous collisions between vehicles and trains which would otherwise be wholly avoidable.  Large amounts of cable are stolen from storage depots and there is a real impact on rail networks' capacity to replace stolen lineside cables.  Such is the demand, suppliers are finding it difficult to meet the demand for more cable for such replacement in a reasonable time.  In financial terms, he goes on: 
"... compensation for delays and additional security provisions are costing [National Rail] approximately £15 million each year."
29.	The court then said:
23. In our judgment, there is ample evidence of a high degree of disruption caused by this kind of offending nationally.  Set against that body of evidence before the judge, comment by him as to the frequency of offending in his local area does not breach any principle set out in the guidelines.  His emphasis was on the degree of disruption more than the local prevalence.  
30.	The court continued:
24. All that said, as we have already indicated in the course of argument, we do accept the principle submission advanced here that the starting point was somewhat too high, producing sentences of three years after a plea of guilty.  It seems to us that the appropriate starting point is two years' imprisonment for offending of this kind.  The appropriate reduction here for pleas of guilty entered, as they were, only in the face of a trial, was 10 per cent.  
25. Accordingly, the appropriate sentences here are sentences of 22 months' imprisonment on each count, to be served concurrently in respect of each appellant …
31.	Whereas our tentative view was that the starting point for these appellants after trial was one of 3 years’ imprisonment, the court in this case took the view that the appropriate starting point was two years' imprisonment for offending of this kind. 
32.	The only difference in the two cases is the amount of loss in the index cases is considerably greater than in Manion and Kershaw.
33.	The language of the earlier case is clearly not meant to be exact.  A ‘starting point’ by definition permits of movement to either side.  Anyone who is devising a guideline (which this was not) speaks of a range, and perhaps also of a starting point within it.  But a starting point is not a fixed sentence and cannot be meant to be. Thus we do not take Manion to be setting an absolute standard for all cases of railway cable theft.
34.	In our view the appropriate sentence for the two appellants on the theft charges is two years’ imprisonment, allowing a full discount for the pleas. To that extent the appeals are allowed.