England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 19 December 2008

1. MR JUSTICE DAVIS: On 2nd October 2008 at the Crown Court at Sheffield, the appellant, a man now aged 34, pleaded guilty to a single count of burglary. He was sentenced to a term of five-and-a-half years' imprisonment with a direction that 54 days on remand count towards sentence. He appeals by leave of the single judge.
2. The background facts, shortly stated, are these. At around 5 o'clock in the morning on 20th August 2008 the complainants, Mr and Mrs Godlington, were in bed in their home in Rotherham. They had left a small kitchen window open. Mrs Godlington was awoken by a noise and woke up her husband who, although naturally somewhat fearful, went downstairs without turning the lights on with a torch in his hand in order to apprehend the person who was in his living room. Mr Godlington had with him his dog, a Staffordshire Bull Terrier.
3. There was something behind the door to the living room so Mr Godlington could not get through. He then barged in and was immediately confronted by the appellant who was standing in the middle of his living room. The appellant was unable to leave the premises without passing Mr Godlington. He went forward to try to escape but Mr Godlington hit him with a torch because he believed he was about to be attacked and he did not know whether the appellant had a knife or some other weapon. The appellant moved back and the Staffordshire Bull Terrier began to jump up at him, at which point the appellant said: "I've had enough, I've had enough" and sat down on a sofa, backing away from Mr Godlington.
4. Items had been picked up from the living room and placed around the room in order to be taken away. This included £50, two gold bracelets, a purse, DVDs, an X-box game and a camera. The appellant was wearing a watch that belonged to Mr Godlington.
5. The police were called by Mrs Godlington. The appellant attempted to escape on two further occasions by getting off the sofa, but when Mr Godlington told him to sit down and put his hands in his pockets he did so. The appellant drank the contents of a bottle of medicine and remained on the sofa calmly until the police arrived and arrested him.
6. When interviewed the appellant said he had been drinking. He then went to look for a flat where a woman he knew said he could have a bed for the night. He saw the kitchen window was open and entered the property. He got the items together but then he said he fell asleep on the sofa and only awoke when Mr Godlington came into the living room. He did not seek to blame Mr Godlington in any way for attacking him.
7. The appellant has a very lengthy antecedent history indeed. There are numerous convictions including offences against the person and no fewer than 31 theft and related offences, as well as other offences. On his record appear convictions on numerous occasions for burglary and theft, including dwelling-house burglary, starting in 1988 (when of course he was relatively young), but then really persisting throughout. Most recently on 24th October 2003 the appellant was sentenced to a term of five years' imprisonment in total for various offences, including three dwelling-house burglary offences, as well as other matters also; and since then he has been in further trouble with the courts.
8. The judge in sentencing showed an understandable degree of exasperation with this particular appellant, noting that he had in fact voluntarily engaged on a lifetime of crime. What the judge said was this:

"Martin Lee Grantham, you are 34 years of age and the real purpose of sentencing you is to protect the public from your criminality. As your counsel properly indicated, the only mitigation in your case is your guilty plea and I am going to give you credit for that, but I am not giving you the maximum credit because you were caught red handed."

The judge then went on to say that he was not going to waste his breath telling the appellant how serious it was because "you do not care" and the judge noted also that this case, as other cases, involved entering people's homes when they were asleep. It is unsurprising that the judge took a very dim view of this particular appellant given all the antecedent history.

9. Nevertheless, it is submitted by Mr Canning on behalf of the appellant that however bad his record (and Mr Canning acknowledged that the only real mitigation was his plea) that the judge's sentence was quite simply too long and connoted a starting point of something in the region of seven years for what at the end of the day was a single count of burglary. Mr Canning has referred us to the well-known case of McInerney (BAILII: :[2002] EWCA Crim 3003 ); and he says overall that a sentence of the kind imposed here was out of all proportion to sentences of a similar length imposed for far more serious matters, including serious violence. Mr Canning submits that, even accepting that the judge was entitled to reduce the discount for plea because the appellant was caught red handed, the ultimate result was simply too long; even though of course by reason of the relevant previous convictions the judge would be starting, as required, with consideration of a term of three years.
10. We can well understand the judge's sentencing remarks, if one focuses simply on the offender himself. But of course the court also has to focus as well on the offence. We are persuaded that on a plea a sentence of five-and-a-half years' imprisonment for what was a single count of burglary and with no real aggravating factors in the offence (apart from the fact - and an important fact - that this was committed at night-time when occupants were in the house) cannot be maintained. Accordingly, we quash the sentence of five-and-a-half years' imprisonment and substitute for it a sentence of four years' imprisonment, with a direction that 54 days on remand should count towards sentence. The appeal is allowed to that extent accordingly.