One of the perils of being a criminal defence barrister is the proximity to those who are, well, criminals – as one such criminal barrister found out recently. Enter Bobby Heath, who on 13 June 2016 was convicted in his absence of theft – see this Standard report for (a few) more details.
What happened?
He appeared in court in relation to “drugs and driving matters” in May 2015 and was represented by a barrister. Having dealt with Heath’s case, the barrister realised that her mobile phone was missing. She reported it to the police who checked the CCTV footage from the court house. It transpired that Heath had stolen her mobile phone –worth £300.
We are unaware of the circumstances of the theft – whether it was from her person, her bag or simply left unattended. Either way, Heath was subsequently found and arrested.
In the interim, he has begun to serve a sentence for another offence. On 13 June 2016, his trial date, he refused to leave his cell to attend court. The court proceeded in his absence and convicted him.
He will be sentenced on 21 June 2016.
Sentence
We know that Heath is currently serving a sentence for another offence. The court has to power to make the new sentence consecutive to the existing sentence (provided that Heath has not been released from that sentence and then recalled). However, where the sentence currently being served was imposed after the new offence was committed (the situation here), the Totality Guideline states:
Consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, an adjustment should be made to the sentence imposed for the latest offence.
The sentence will be determined by an application of the Theft Guidelines. On the basis that this was an opportunistic theft, this looks like a Culpability C offence. Although an over-zealous prosecutor might seek to argue that it falls into Culpability B on the basis that there was a degree of trust placed in Heath –don’t expect that to fly though. As for Harm, aside from the enormous pain in the arse it is when one loses a mobile phone – contacts, emails, pictures, not to mention that top score on candy crush potentially lost – this seems to be an offence with a low level of harm. The monetary value is low – Category 4 as it is below £500. On that basis, this looks like a non-custodial disposal. We do not know the extent of Heath’s previous convictions, which of course could aggravate the offence and increase the sentence beyond the range set out by Category 4C of the guideline.
How the court deals with it will depend on its view on totality, something which we cannot comment on without knowing more details.
Whether Heath has the means to pay a fine (perhaps not if he is nicking mobile phones) remains to be seen. As such, we can expect a very short custodial sentence, perhaps concurrent. He is already in custody and so what is most important is that this offence is marked on his record. We do not know whether the mobile phone was recovered and so the court may wish to consider a compensation order. Of course that is subject to Heath’s means.
Barristers beware!