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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Feltis, R.v  EWCA Crim 776 (19 August 1996)
Cite as:  EWCA Crim 776
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B e f o r e :
MR JUSTICE DOUGLAS BROWN
MR JUSTICE CURTIS
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MR JUSTICE CURTIS: This appellant is 35 years of age and has no previous convictions of any materiality. He is married with one son. He appeals with the leave of the single judge against a total sentence of 12 months' imprisonment imposed on him at Reading Crown Court on 8th July 1996.
The background to this appeal is that the appellant work for Thorn UK, who owned Rumbelows and Radio Rentals. At their headquarters at Theale was a computer. The accused was a contract operator of that computer, which was an AS 400, from 23rd May 1994. Though this computer was not the main computer of Thorn UK, nevertheless it was a sophisticated and vital piece of modern machinery and of importance to the company in that the computer controlled, to all intents and purposes, the distribution of Thorn's electrical goods countrywide.
On 14th and 16th October 1994 this appellant disconnected two cables at the rear of the machine to which we have referred, causing a total shutdown of the computer in each case. On 22nd October he disconnected two cables and reconnected them causing an impairment of operation of the computer rather than a total shutdown.
Thorn were concerned at the enormous disruption of their business which resulted from the accused's conduct. They called in IBM, the makers of the computer. An American expert was flown to this country to tackle the matter. It is sufficient to say that he suspected sabotage. A video camera was set up and the accused was seen and recorded committing similar offences.
He admitted at court what he had done and pleaded guilty to three counts of unauthorised modification of computer material and one of attempt contrary to the Computer Misuse Act 1990. In explanation for his conduct he gave four explanations. First, he criticised his immediate superior who he alleged was incompetent. Second, that he (the appellant) was testing the computer and in particular its resilience to interference. Thirdly, overwork. Fourthly, domestic pressures.
The aggravating features of the case are clear. First, and most importantly, the breach of trust that the accused repeatedly committed. Secondly, the substantial damage to Thorn's business - the learned judge found in his sentencing remarks that the amount was in excess of £600,000. To that topic we will return in a moment.
There was however substantial mitigation. First a plea of guilty, and indeed that was preceded by an immediate confession to the investigators acting on behalf of Thorn when they began to enquire into the matter. Secondly, there was a medical report before the trial judge and before us to the effect that the appellant was overworked and exhausted. The third head of mitigation was a crisis that had occurred in his domestic circumstances, the details of which it is not necessary fully to set out. True it is also that there has been some delay. As we have pointed out the offences were in October 1994, the committal was in March 1995 but it was not until July 1996, that this accused on a plea of guilty came to be sentenced for what he had done wrong.
Counsel for this appellant has urged upon us that this appellant should indeed suffer a sentence of imprisonment bearing in mind this is a breach of trust case, but submits that it should have been a suspended sentence. She makes the following points. First, there was no commercial motive for gain. Secondly, she says the financial loss to Thorn was not of the order that the learned judge found but was of the order of £200,000. In the judgment of this court that is not a crucial factor. The accused knew full well the consequences of what he was doing and, as we have said, was acting in breach of trust and the precise calculation within the brackets that we have mentioned is not crucial to the length of the sentence of imprisonment that it is accepted should be imposed. Thirdly, she submits that there are exceptional circumstances. It is submitted that the accused's working conditions imposed on him were hard. Secondly, there was trouble at home in the respects shown in the psychiatric report and the GP's report, and that the subsequent effects of his offences have been severe. Counsel therefore submits that cumulatively it would be right for this court and indeed the trial judge to have imposed a sentence of imprisonment which was suspended.
We do not agree with that submission. It is clear from, in particular, the case of Yvonne Robinson  14 Cr.App.R (S) 559, that in cases where there has been a breach of trust, as here, a custodial sentence would be required and as the learned Lord Chief Justice of the day said in the course of giving judgment in that case, the circumstances where the court would be justified in suspending a sentence in the light of the Criminal Justice Act 1991 would be few and far between. As in that case, sad though the circumstances of the appellant are, they cannot be described as "exceptional".
There are a number of matters, however, that do require further mention. First, it is clear to this court that this appellant was normally well behaved and hard working and we look to some explanation for his unusual conduct in October 1994. It is clear from the testimonials that we have read about him that he was an extremely hard working man who normally devoted himself to his employer's best interests. Secondly, it is clear that at the time of this offence and as a result of these offences, that he was exhausted and was, according to the psychiatrist, under the most tremendous strain. The other matter of importance is that within a short time of this offence the appellant consulted his general practitioner who found him to be in a depressed and exhausted state and very sensibly she sent him to seek further advice.
In the light of all those matters, the court has gone on to consider whether the sentence in fact imposed was the correct one. In our judgment the learned judge was entirely right to decline to suspend the operation of the sentence. It is clear what Parliament's intention of the Criminal Justice Act was and we have that firmly in mind as we have the case of Robinson to which we have already referred. However, in this individual case there is substantial personal mitigation. It is clear that this appellant is unlikely to re-offend. He has worked hard for his employers in the past and the effects of his wrongdoing have been extremely severe, both to him, in that he is never going to work in the computer business again, and upon his wife and family who are facing very, very grave financial embarrassment, if not worse.
In those circumstances we feel that there is substantial personal mitigation and that in the circumstances this is a proper case in which we can reduce the length of the sentence which this man ought to suffer. We do not criticise in any way whatever the sentence passed by the learned trial judge, but as an act of mercy and in the light of all the reports, some of which we suspect were not before the learned trial judge, we consider that the right sentence to be passed in this case is one of six months' imprisonment and for those reasons the sentences passed below on each count will be quashed and sentences of six months' imprisonment will be substituted on each count for them and they are each to run concurrently. To that extent and that extent only this appeal is allowed.