“The Owen Extension”: When Persistent, High-Value Theft Justifies Departure from the Sentencing Guidelines

Introduction

Owen, R. v  ([2025] EWCA Crim 780) delivers a significant clarification on the limits of the mandatory duty in s.59 Sentencing Act 2020 requiring courts to “follow” Sentencing Council guidelines. The Court of Appeal (Criminal Division) – Lewis LJ giving the judgment – upheld a 32-month custodial term (48 months less a one-third guilty-plea reduction) imposed on Gareth Owen, a prolific shoplifter with 91 previous offences, for 31 linked thefts committed over three months.
The Court confirmed that where the scale, persistence and value of offending render the guideline sentence “contrary to the interests of justice”, a judge may step outside those guidelines, sentence the “package” as a whole, and impose the same term concurrently on each count.

Summary of the Judgment

1. The Recorder at first instance ignored the Theft Guideline and set a global sentence of 48 months.
2. The defence argued the Recorder (i) set too high a starting point, (ii) overlooked mitigation (remorse and drug-rehab progress).
3. The Court of Appeal held:

• Departing from the guideline was permissible under s.59 where following it would not do justice;
• Harvey [2020] EWCA Crim 354 already recognised such departures for multiple shop thefts; Owen extends that logic to an even larger spree coupled with domestic burglar-style thefts;
• Although “severe”, 48 months (32 after plea) was not manifestly excessive.

Detailed Analysis

Precedents Cited

R v Harvey [2020] EWCA Crim 354
— 14 shop thefts + 2 other offences; global sentence 30 months (45-month starting point).
— The court permitted aggregation of values and upheld departure from the guideline.

Sentencing Council Guideline: Theft – General
— Provides a matrix for single offences. Allows courts to aggregate values for multiple shop thefts.

Statute: Sentencing Act 2020, s.59(1)
— A court must follow a guideline “unless satisfied that it would be contrary to the interests of justice to do so.”

Legal Reasoning

1. Threshold for departing from Guidelines
   The Court applied s.59 SA 2020 and reaffirmed that the threshold is not “exceptional” but “contrary to the interests of justice.” Persistent, multi-count theft, substantial value and extensive antecedents tilt the balance.
2. Totality Principle Preserved
   By passing 48 months concurrently, the Recorder avoided “double punishment” across counts while still reflecting aggregate harm.
3. Comparative Reasoning with Harvey
   The panel compared quantum (29 vs 14 shop thefts, £2.7k vs £1.9k) and aggravation (night-time domestic context, 47 prior convictions). Despite missing factors present in Harvey (use of children, co-offending), the larger spree justified a similar or higher tariff.
4. Mitigation Discounted but Not Ignored
   Although remorse and drug-rehab steps were noted, their weight was neutralised by the offender’s “poor response” to previous community orders. The Court stressed that sentencing cannot gamble on future rehabilitation when historic compliance is dismal.

Impact on Future Cases

• Codifies an “Owen Extension” – Courts may package all theft counts (shop + domestic) into one global sentence where volume/persistence makes the standard grid artificial.
• Guideline Flexibility – Confirms that the Theft Guideline’s focus on single counts should not hamstring judges dealing with “crime spree” scenarios.
• Sentencing Severity for Prolific Shoplifters – Offers appellate cover for custodial terms of 2½–4 years where aggregate value is ≈£3k+ and antecedents are heavy.
• Totality Approach Endorsed – Imposing identical terms concurrently (rather than consecutive sentences for different modes of theft) is acceptable if the global figure reflects overall culpability.

Complex Concepts Simplified

1. “Manifestly Excessive”
A sentence will only be quashed if it is obviously too long when compared with the seriousness of the offence and similar cases—think of it as a “clear outlier” threshold.

2. “Departure from Guidelines”
Judges start with the Sentencing Council tables. They may leave them only where adherence would be unjust. Owen shows the types of facts that justify that leap.

3. “Concurrent vs Consecutive”
Concurrent sentences run alongside each other; consecutive run one after another. The totality principle requires that the overall time be proportionate to the total crime spree.

4. “Early Guilty Plea Reduction”
An automatic discount (normally one-third) for admissions at first reasonable opportunity—recognising saved court time and victim stress.

5. “Home Detention Curfew (HDC)”
Release scheme allowing prisoners nearing the end of their term to serve the remainder on electronic monitoring at home. Owen was already on HDC at appeal, but that fact did not dictate outcome.

Conclusion

Owen, R. v crystallises an important procedural message: where a defendant conducts a sustained, high-value theft campaign, aggravated by a significant record, a court may justly set aside the Theft Guideline, craft a global sentence, and still satisfy the totality principle.

Key takeaways:

• Section 59 SA 2020 provides real—not illusory—flexibility for judges facing atypical theft patterns.
• The Court of Appeal is willing to back “severe” terms where deterrence, community impact and prolific offending converge.
• Mitigation rooted in drug-treatment and remorse must be weighed against historic non-compliance; it is not a trump card.
• Practitioners should aggregate values, assess persistence, and compare to Harvey and Owen when advising clients or crafting submissions.

The “Owen Extension” therefore stands as a modern benchmark for sentencing prolific acquisitive crime, signalling to lower courts and practitioners alike that the Theft Guideline’s envelope has clear, workable exceptions.