No: 200700683/A3 
Neutral Citation Number: [2007] EWCA Crim 1049
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 23rd April 2007
 
B E F O R E:

LORD JUSTICE MOORE-BICK 

MR JUSTICE DAVID CLARKE 
 
MRS JUSTICE SWIFT DBE

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R E G I N A 

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WAYNE JASON BRETT
 
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Non-Counsel Application

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J U D G M E N T 
1.	Mrs Justice Swift: On 4th January 2007, at Cardiff Magistrates' Court, the applicant pleaded guilty to two offences of theft and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.  On 25th January 2007 in the Crown Court at Cardiff he was sentenced to 18 months' imprisonment on each count concurrent.  A further offence of theft was taken into consideration.
2.	The applicant renews his application for leave to appeal against sentence after refusal by the single judge.
3.	The applicant is 35 years old and has 68 previous convictions for theft, many for shoplifting, starting when he was 13.  His offences were and have always been committed in order to finance a long-standing drug addiction.
4.	On 31st March 2006 he was sentenced to 14 months' imprisonment for an offence of burglary.  He was released on licence from that sentence on 22nd September 2006 but was recalled on licence under the provisions of section 254 of the Criminal Justice Act 2003 as a result of these offences.  His licence expiry date is 24th April 2007.  
5.	The facts of the offences are that on 30th November 2006 a member of the security staff at a department store saw someone holding two boxes of perfume by a door.  The applicant walked towards the man.  He was also carrying two boxes of perfume.  The men then left the store without paying for the goods.  The police were alerted and shortly afterwards the applicant was stopped and found to be in possession of four bottles of perfume.  The prosecution accepted that the other man had no idea what was going on.
6.	The applicant was interviewed and admitted the offence and also admitted another offence of shoplifting perfume which he asked to be taken into consideration at the hearing.  
7.	On 3rd January 2007 he attended court in the morning in connection with these offences and then left the building.  At about 1 o'clock on that day he was in a chemist shop and stole two bottle of aftershave.  The police were called and he was arrested.  When interviewed, he said he had intended to sell the bottles in order to raise money to finance his drug habit.
8.	The sentencing judge had before him a "response to supervision" report which made no specific recommendation because the author was aware that the applicant was subject to recall proceedings.  The author observed that there was a high risk of the applicant re-offending in a similar manner given his long record of acquisitive offending in order to feed his addiction to drugs.
9.	In sentencing the applicant the judge said that the fact that he had already been recalled to custody had to be borne in mind when considering the overall length of sentence.  He observed that these were relatively minor shoplifting offences, but, nevertheless, the applicant had "dozens and dozens" of previous convictions for precisely the same sort of offence.
10.	The grounds of appeal argue that in all the circumstances the sentence was manifestly excessive.  They contend that too much weight was given to the applicant's previous convictions and that the judge had adopted too high a starting point.  
11.	We consider that given the applicant's previous convictions, the nature of the offences, the fact that both offences were committed whilst on licence and that the second was committed at a time when the applicant should have been in court in connection with the first offence, the sentences cannot be said to be manifestly excessive.  Leave to appeal is therefore refused.
12.	We make it clear that since the applicant was recalled to custody under section 254 of the 2003 Act and the offence in respect of which he was recalled was committed after that Act had come into effect, an order that any custodial sentence imposed by the court should run consecutively to the expiration of the custodial period presently being served by him would fall foul of section 265 of the 2003 Act.  It appears that this was not the understanding of the judge who sentenced the applicant.  For the avoidance of doubt, therefore, we make clear that the sentence of 18 months took effect from the date when it was passed and not at the conclusion of the sentence originally passed on 31st March 2006.