Tamang, R. v

Factual and Procedural Background

The Appellant, aged 33, was sentenced on 15th December 2023 in the Crown Court at Canterbury by Judge McDonagh to two years' imprisonment following early guilty pleas to four counts of theft. The offences involved the theft of jewellery from elderly residents at Highland House, a care home specialising in dementia care, where the Appellant had worked as a night carer for over six years. The stolen items belonged to three residents, aged between 80 and 92, and included engagement and wedding rings as well as a cross necklace. The jewellery was recovered following an internal investigation and inquiries with local pawnbrokers. The Appellant admitted the thefts, citing financial difficulties as her motivation. The sentencing judge classified the case as high culpability due to the breach of trust and vulnerability of the victims, and imposed a sentence of two years' immediate imprisonment after allowing a one-third reduction for the guilty plea. The Appellant sought leave to appeal the sentence, which was granted by the full court.

Legal Issues Presented

1. Whether the sentencing judge took too high a starting point in determining the custodial sentence.
2. Whether the judge failed to properly consider the Appellant’s mitigating factors.
3. Whether the judge erred in refusing to suspend the custodial sentence.

Arguments of the Parties

Appellant's Arguments

• The starting point for sentence was too high, with harm falling just outside category 3, suggesting a 12-month custody starting point for a single offence.
• The sentencing judge failed to take proper account of significant mitigating factors, including genuine remorse, immediate admission, cooperation, good character, and an unacceptable delay of 21 months before sentencing.
• The judge erred by not suspending the sentence, neglecting relevant sentencing guidelines on custodial sentences of two years or less and failing to consider the significant harmful impact immediate custody would have on the Appellant’s young child.

Court's Observations (Implicit Arguments)

• The harm should not be assessed solely by financial value but also by emotional distress and breach of trust.
• The judge’s starting point of three years before mitigation was too high; a more appropriate starting point was around 27 months for all offences combined.
• The mitigating factors warranted a substantial reduction of the sentence, which the judge failed to apply beyond the guilty plea credit.
• The sentencing guidelines on suspension of sentences were not referred to by the sentencing judge, requiring the appellate court to assess the appropriateness of suspension itself.
• Stealing from vulnerable elderly persons in a position of trust usually warrants immediate custody, but the specific factor of the Appellant’s young child justified suspension in this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the sentencing exercise by first considering the appropriate starting point for the offences. It rejected the Appellant’s submission that the harm was only just outside category 3, emphasizing that harm should be assessed beyond financial value to include emotional distress and breach of trust. The court concluded the starting point for all offences combined should be approximately 27 months’ imprisonment, lower than the judge’s original three years.

Next, the court examined mitigating factors, including the Appellant’s genuine remorse, immediate admission, cooperation, good character, and the prolonged delay before sentencing. The court found that the sentencing judge had failed to give any allowance for these mitigating factors beyond the guilty plea credit, which warranted a reduction of the sentence to approximately 15 months before guilty plea credit, and 10 months after applying the one-third reduction for the plea.

Regarding suspension, the court noted the sentencing judge did not refer to the relevant guideline on custodial sentences of two years or less, which sets out factors favoring or disfavoring suspension. The court found that all factors favoring suspension applied: a realistic prospect of rehabilitation, significant personal mitigation, and the harmful impact on others (notably the Appellant’s 14-month-old child). Conversely, the factors against suspension, such as risk to the public or poor compliance with court orders, did not apply. While acknowledging the seriousness of the offence and the usual requirement for immediate custody in theft from vulnerable elderly persons in positions of trust, the court identified the impact on the Appellant’s young child as a powerful factor justifying suspension.

Holding and Implications

The court ALLOWED THE APPEAL against sentence.

The original sentence of two years’ immediate imprisonment was reduced to a suspended sentence of ten months’ imprisonment, suspended for one year. Additional requirements were imposed, including a 10-day rehabilitation activity requirement and 30 hours of unpaid work. The Appellant was entitled to immediate release.

The decision directly affects the parties by reducing the custodial sentence and suspending it, reflecting the court’s careful balancing of harm, mitigation, and personal circumstances. The court did not establish new precedent but applied existing sentencing principles and guidelines to the particular facts, emphasizing the importance of considering all mitigating factors and the impact on dependents in sentencing decisions involving custodial sentences of two years or less.