England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 25th June 1999

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE)

MR JUSTICE WRIGHT

and

MR JUSTICE KAY

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R E G I N A

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BARRY EDWARD GIBBS

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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 M HICKS appeared on behalf of the Appellant

MISS J MILLER appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Friday 25th June 1999

THE VICE PRESIDENT: On 22nd May 1998, at Winchester Crown Court, the appellant pleaded guilty to seven counts of burglary, those in counts 7 to 10 and 12 to 14, and changed his plea on six counts, where he pleaded to the lesser offence of handling stolen goods, having been charged with burglary, on counts 2 to 6 and 11. He was sentenced by His Honour Judge Hooton to 10 years' imprisonment on each of the burglary counts and 8 years' imprisonment on each of the handling counts, all those sentences to run concurrently. Subsequently, the same judge made a confiscation order in the sum of just over £70,000, under section 71 of the Criminal Justice Act 1988 with 2 years' imprisonment consecutive in default; and an order was made for payment for compensation, approaching £45,000 and for the payment of £7,000 towards the prosecution costs.

The plea of not guilty entered on count 1, which alleged burglary in June 1992, led to the entry of a verdict of not guilty on that count.

He appeals by leave of the Full Court against his sentence, following refusal of leave by the Single Judge. There was a co-accused call Dew, who pleaded guilty to one count of burglary and received a non-custodial sentence.

The seven dwelling-house burglaries took place between August 1996 and February 1997. The premises were, in each case, comparatively isolated country houses throughout Southern England; namely in Essex, Hampshire, Somerset, Avon, Dorset and Cambridgeshire. Only high value items were taken. In nearly all the cases, the premises were entered with the use of tools taken from the garden sheds at the premises.

The appellant was arrested following a surveillance operation by the Hampshire police. They were watching a house in Sherbourne on 4th February 1997 which ultimately gave rise to count 13, and they saw the appellant walking round in the area. They did not see him committing the offence, but, after it, they followed him back to London. The next day they followed him to the scene of a burglary in Cambridgeshire which gave rise to count 14, following which he and his accomplice were arrested.

At that stage, he admitted the burglaries giving rise to counts 13 and 14, but denied the other offences. So far as the counts of handling are concerned, when the police searched a property which the appellant had in London, they found photographs of a property in Portugal, which seemed to contain, among other things, antique English furniture. Arrangements were made with the Portuguese police to search that house, which was in the Algarve.

The property referred to in the handling counts was recovered from the house in Portugal. Those items of property had been stolen during the course of dwelling-house burglaries in Oxfordshire, Hampshire, Suffolk and Wiltshire, between May 1994 and August 1996. Items worth some £20,000 of a choice character were found in the Portuguese villa. But the total value which had been lost in those earlier burglaries was very much greater.

At the time of his arrest, the appellant was driving a Mercedes motorcar which he had bought the previous year for £40,000. He had a house in Shaftsbury where his wife and two children lived, which had been bought 5 years before for about £110,000 and was free of mortgage. He had the house in Portugal, which had been bought 6 months before for £115,000. He was also providing a London flat for his other family. The Inland Revenue had no record of returns of income by him in recent times.

He is now almost 51 years of age. Since the age of 12 he has made 18 appearances before the courts for offences, mostly of dishonesty and at least half of them for burglary. His sentences have ranged from conditional discharge and probation, via detention centre and two spells in borstal, to imprisonment for periods between 6 months and two-and-a-half years. Until the present matters, however, his last court appearance had been in 1989, when a community service order was made for dwelling house burglary and theft.

On the appellant's behalf, Mr Hicks, in an attractive submission, accepts that the sentencing exercise for the learned judge was not an easy one. There had to be balanced the aggravating features, on the one hand, and the mitigating features on the other. Mr Hicks realistically accepted that there are a number of aggravating features. There were no fewer than seven residential burglaries spanning a period of many months. All were professionally planned and executed. They were directed at objects of high value, in houses in isolated places. The total figure of property taken was in excess of £46,000, of which over £7,000 had been recovered. In addition to all that, there were the six earlier handlings to which we have already referred.

As against those aggravating features, Mr Hicks stresses that, in no case, was the occupier present, none of the burglaries was committed at night and no weapon was used or contemplated. There was no desecration or vandalism of the property. There is no specific evidence of distress, so far as the victims are concerned. There were no repeat visits to the same premises and, save on the last occasion, the appellant was always acting alone.

In the light of those matters, Mr Hicks poses the question as to whether, following a plea of guilty to 13 of the 14 counts in the indictment, sufficient credit was given by the judge, bearing in mind that the judge did not find that the appellant had been a burglar "all his life".

Mr Hicks draws attention to the appellant's assertion that he is now too old for burglary. As was pointed out in the course of argument, his manner of entry does not involve climbing; it invariably involves access at ground floor level.

Appearing at the request of the Crown, in relation to the permissible range of sentences for burglaries of this character, Miss Miller tells the Court that two at least of the victims of the burglaries were respectively aged 88 and 75. Indeed it was to be expected that, in properties of this kind, the owners would be likely to be advanced in years and that the property taken would be, in some cases, of particular sentimental as well as commercial value.

The Court has been provided, as have counsel, by the Court of Appeal Office, with a list of other authorities and transcripts of judgment in some of them, relating to decisions of this Court during the last 2 years.

The starting point, generally speaking, in relation to dwelling-house burglary is, of course, Brewster & Others [1998] 1 Cr App R(S) 181, BAILII: [1997] EWCA Crim 3421 , where the relevant factors in relation to domestic burglary are identified in the course of the judgment given by the Lord Chief Justice, Lord Bingham who said this:

"Generally speaking, domestic burglaries are the more serious if they are of occupied houses at night; if they are the result of professional planning, organisation or execution; if they are targeted at the elderly, the disabled and the sick; if there are repeated visits to the same premises; if they are committed by persistent offenders; if they are accompanied by vandalism or any wanton injury to the victim, if they are shown to have a seriously traumatic effect on the victim; if the offender operates as one of a group; if goods of high value (whether actual or sentimental) are targeted or taken; if force is used or threatened; if there is a pattern of repeat offending it mitigates the seriousness of an offence if the offender pleads guilty, particularly if the plea is indicated at an early stage and there is hard evidence of genuine regret and remorse."

That authority also provides a more specific guide in relation to the sentence in the present case, having regard to the fact that, as appears from page 187 of the report, a sentence of 9 years imposed on Brewster for three day time burglaries of unoccupied flats, in central London, where the most significant item stolen was a watch worth £10,000 and there was no ransacking of the premises, was upheld by this Court, in relation to a professional burglar, with a formidable criminal record, including no fewer than 33 previous convictions for domestic burglary. His career began at the age of 8 and included a previous appearance in R v Brewster (1982) Cr App R(S) 191, where leave to appeal against a 10 year sentence, following pleas of guilty to two offences of burglary, was refused by this Court.

It is to be noted that although Brewster's record was somewhat longer than this appellant's, the number of offences for which he was dealt with was considerably less than the number of offences in the present case. It appears also that the value of the property involved in that case was considerably less than that in this case.

There are many decisions of this Court where a sentence of 5 years has been upheld, following a plea of guilty to a single offence of dwelling-house burglary, where the occupant was elderly. See, for example

R v Winn 16 Cr App R(S) 53, R v Lee 16 Cr App R(S) 60, and, R v Henry [1998] 1 Cr App R(S) 289, BAILII: [1997] EWCA Crim 1915.

There is, as it seems to us, nothing in the authorities since Brewster's 1997 appearance, or indeed since his 1980 appearance, to suggest that there is anything wrong in principle with a 10 year sentence for a professional burglar, following a guilty plea to a significant number of offences. We do not, of course, suggest that 10 years, following a guilty plea, is ever likely to be an appropriate sentence for a single offence of simple, as distinct from aggravated, burglary.

For example, in R v Carawana (23rd May 1997 Court of Appeal (Criminal Divison) transcript) this Court reduced a sentence of 14 years to 9 years, following a guilty plea to six counts of burglary, with 38 other offences taken into consideration, and where £350,000 worth of property was involved. The appellant in that case had only six previous convictions, mostly for dishonesty, and he was burgling to feed his cocaine habit, that is to say he was in a different category of burglar from the present appellant.

In R v Whittaker [1998] 1 Cr App R(S) 172, BAILII: [1997] EWCA Crim 1531, the Full Court refused leave to appeal against a sentence of 10 years, following conviction on four counts of burglary, where the elderly were targeted. In

R v Hawkins (Court of Appeal (Criminal Division) 15th January 1999, BAILII: [1999] EWCA Crim 58 ) 8 years was upheld following conviction for conspiracy to burgle, there being no evidence that the appellant himself had gone into any of the dwellings.

In the light of this appellant's record, including the absence of convictions between 1989 and 1994 the principal question is whether the judge was justified in imposing a total sentence of 10 years on one who was described by him as "a very serious professional burglar", a description which is not resisted before this Court.

In our judgment, the learned judge was justified in imposing a 10 year sentence. We make it plain that such a sentence for simple burglary, as distinct from aggravated burglary, even where there are a large number offences committed by a professional burglar is, following a guilty plea, at the top of the permissible bracket. But it is not a sentence which, in the circumstances of this case, this Court feels it will be appropriate to interfere with, on the basis that it can be described as manifestly excessive. In those circumstances, this appeal is dismissed.