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Royal Courts of Justice

The Strand

London WC2

Friday 23rd January 1998

B E F O R E :

MR JUSTICE LATHAM

and

SIR PATRICK RUSSELL

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R E G I N A

- v -

ANDREW PAUL DARBY

LIAM GAVEN DORRIAN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR J WELSH appeared on behalf of the Appellants

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Friday 23rd January 1998

MR JUSTICE LATHAM: On 19th August 1997 in the Crown Court at Truro these appellants were each convicted of two counts one of going equipped for theft and, secondly, of theft. In relation to the counts of going equipped for theft, each was sentenced to 2 years' imprisonment, and as far as the counts of theft were concerned, each was sentenced to 6 months' imprisonment, to be served consecutively, making a total sentence of two-and-a-half years' imprisonment. They appeal against their sentences with leave of the Single Judge.

The two defendants have appalling records. As far as the appellant Darby is concerned, he has 36 previous court appearances, a significant number for dishonesty; as far as Dorrian is concerned, he has 15 previous court appearances. They are both of them 29 years of age. The recent court appearances of both of them make it plain that they have become, in effect, professional thieves from gaming machines which people can play in pubs and public houses and in leisure parks. The way in which these two appellants have gone about their thieving has been to use a 50p piece appropriately modified so that it can be put into the machine and then retrieved. The machine is deceived into believing that it has been provided with the 50p, and the appellants were thereby enabled to play the machine, in effect, without making any payment at all.

The particular offences for which they were convicted occurred on 30th October 1996. They were seen at 2.00 p.m. at a tourist park in Newquay playing the machines; and the way that they were behaving in relation to the machines caused the manager, a Mr. Porter, to become suspicious. He believed that they were doing that which they indeed were doing, which has been described colloquially as 'strimming'. However, he had no means of proving that at the time and the appellants left the arcade.

About an hour and a half later the appellant Darby, giving a false name, changed £100 from coins into notes at Lloyds bank in Newquay, and 10 minutes later they went to the New Space City Amusement Arcade in Newquay. By then the police had been alerted and they were arrested. They were found with the modified 50p coin, which was the one which had been used in their thieving expedition that day. Darby had £104.40 on his person and Dorrian had £81.

The appellants argue through counsel, Mr. Welsh, that, although they have dreadful records and although they must be treated as persistent cheats in relation to the way in which they had behaved on this and previous occasions, nonetheless a total sentence of two-and-a-half years' imprisonment is excessive in all the circumstances.

We have been referred to the case R v. Ferry and Wynn [1997] 2 Cr.App.R.(S.) 42, when it is said that this Court, differently constituted, gave assistance in the level of sentences for cases such as this. The case was concerned with thefts from telephone boxes in rural areas. A sentence of 12 months and 6 months' imprisonment consecutive, in other words a total of 18 months' imprisonment, was upheld in relation to one of the appellants in that case; as far as another appellant was concerned, his sentence was reduced to 6 months because of the relatively minor part he had played in the thieving.

Mr. Welsh argues that, as far as these offences are concerned, they cannot be categorised as offences which are as serious as thieving from telephone boxes in country areas, and it follows that the maximum sentence which we should properly consider appropriate for this type of crime is 12 months' imprisonment.

We disagree. Every case has to be looked at, not only in relation to the facts of the case itself but also the background of the particular defendants. In the present case we have indicated, not only the nature of the offences which the court had to deal with, but also the persistence of the offences and the extremely bad characters of both of these appellants.

We consider, nonetheless, that there is force in the submission that a total of two-and-a-half years' imprisonment is excessive. We consider that 18 months' imprisonment is the proper sentence for these appellants for this particular criminal activity, and we propose to reduce the sentence under count 1 to one of 18 months' imprisonment accordingly. As far as the sentence of 6 months' imprisonment for theft is concerned on count 2, we accede to Mr. Welsh's submission to this extent: we consider that the two offences form part of the same criminal expedition and, accordingly, the sentence can properly be made to be served concurrently. The total sentence is therefore one of 18 months imprisonment in respect of each appellant.

The consequences of these sentences, as far as these appellants are concerned, are as follows. You will serve one-half of the sentence in prison. After that, the sentence will be suspended and you will be released. Your release will not bring the sentence to an end. If after your release and before the end of the period covered by the sentence you commit any further offence, you may be ordered to return to custody to serve the balance of the original sentence outstanding at the date of the further offence as well as being punished for the new offence. Any time you have spent on remand will count as part of the sentence that we have ordered that you serve. After your release, you will be subject to supervision on licence until the end of three-quarters of the total sentence. If you fail to comply with any of the requirements of your licence, you may be brought before the court, which will have power to suspend the licence and order your return to prison. To the extent that we have indicated, therefore, this appeal is allowed.