England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 February 2009

1. LORD JUSTICE RIX: On 18 August 2008 at the Crown Court at Snaresbrook, the appellant, Wayne Harnett, pleaded guilty to one count of burglary, and on 3 October 2008 was sentenced by HHJ Pardoe QC to four years' imprisonment. He now appeals against sentence by leave of the single judge.
2. The burglary in question was of a flat in east London, which was lived in by a tenant (a young woman) and her own tenant (a man). She left the home at 7.30 in the morning on 21 April 2008, and her tenant left a short time thereafter, but in the evening of that day, she received a telephone call from a neighbour to tell her that the front door had been kicked in. She left a message for her tenant. Both returned home, where they found that the front door had indeed been kicked in, it was said, "as though it were a cat flap". The police were called. Her rooms and those of her tenant had been untidily searched. Property taken to the value of £750 included a laptop, a camera, a quantity of DVDs, some bags, some champagne and an expired passport. CCTV footage which the young lady herself obtained from the landlords showed that the appellant had entered the flat at about 4.30 in the afternoon. He was seen leaving the property a short time later with some of the stolen property in a shoulder bag. He was arrested some six weeks later. When cautioned, he said he knew nothing about the burglary. He made no comment in interview, save to say that the person shown in the CCTV was not him. He accepted that he had a drug habit, but he said that he funded that by stealing scrap metal.
3. The appellant was born on 21 November 1975 and was therefore 32 at the time of sentence. He has 14 previous convictions for 32 offences, including 24 offences of burglary, the majority of which were of commercial premises, but nine of which were of residential premises. In particular, in August 1999, just before the relevant date for the purposes of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, he was sentenced to four years' imprisonment for five residential burglaries, and to a concurrent sentence of two years for a sixth residential burglary. In September 2003, for a commercial burglary, he was given a Drug Treatment and Testing Order for two years, but that order was revoked on 16 January 2004 when, for a further residential burglary, he was sentenced to imprisonment for three years. That was the first residential burglary conviction within the period covered by section 111, and there was a second consecutive conviction for a residential burglary on 27 May 2005 when he was sentenced consecutively to a sentence of 30 months' imprisonment in addition to the sentence already being served. He was not long out on licence from those sentences when the present offence was committed.
4. Two pre-sentence reports were before the sentencing judge. One referred to an entrenched pattern of offending, mostly for burglary. There was a long history of drug misuse. He had not previously been ready to address his drug abuse, but now appeared to be more motivated. He began abusing solvents at the age of 8, cannabis from the age of 13, heroin from the age of 18, and crack cocaine from the age of 22. From that age on, he had ricocheted between custodial sentences and various orders and licences.
5. There was a high risk of reconviction. A community order was recommended in the light of what appeared to the reporter to be greater motivation to address his drug use. That question was addressed in greater detail by a second report by a different reporter -- an assessor for the purposes of a drug rehabilitation requirement. That concluded that if funding could be obtained, a community sentence with a DRR requirement should be considered by the court. The difficulty with that report is that it does not mention the failed DTTO back in 2003 and 2004, but instead speaks of an attempt at community treatment in late 2006 and early 2007, from which it is said that the appellant had discharged himself due to issues with a female resident of the hostel concerned.
6. In his submissions to the court today, Mr Deane has said that he cannot explain the chronology found variously between the record of previous convictions and this DRR assessment report, and has accepted that the appellant's explanations are not always entirely coherent. At any rate, the judge was not impressed by the suggestion of a community sentence with DRR. He said that the house was found in an untidy condition and that the burglary must have increased the victim's sense of insecurity and been very distressing. He referred to the failed DTTO of 2003 and to the fact that the present offence had been committed only a few weeks after the appellant was released from prison for a similar offence.
7. He went through the history of the appellant's offending to establish that the three-year minimum sentence of section 111 applied. He took into account the pre-sentence reports, but said that he was unpersuaded by them that it would be sensible or useful to make a further drug rehabilitation order. He said that the very simple reason why he was not persuaded was that no use had been made of the previous order. He continued:

"Since then the course of your life demonstrates that the chances of you making any use of such an order now are vanishingly small."

He concluded that a sentence of four years -- that is a year in addition to the minimum sentence of section 111 -- should be imposed as the public had to be protected.

8. In Mr Deane's original grounds of appeal, he submitted that the judge should nevertheless have followed the recommendation of the pre-sentence reports and sentenced the appellant to a community sentence with DRR. Alternatively that, in any event, the custodial sentence was too long. Following the observations of the single judge, Mr Deane this morning has made it clear that he does not pursue his original primary ground of appeal, namely that a community sentence should have been imposed. He accepts the observations of the single judge, reflecting those of the sentencing judge, that this was not a case in which the appellant should have been trusted again with a rehabilitative order. He concentrates his submissions instead on the fact that there was no need for the judge to go beyond the minimum sentence of section 111. Of course, that sentence is still, under its own terms, subject to considerations as to whether a lesser sentence is required to avoid injustice. Mr Deane does not submit that a sentence of below three years is required, but he submits that four years was excessive.
9. He points out, by reference to the recent judgment of this court (presided over by Lord Judge CJ) in R v Saw [2009] EWCA Crim 1, that none of the listed aggravated features (see paragraph 19) applied in this case. At most, reference is made to the untidy search of the burgled home, which we would accept does not quite amount to the aggravating feature of vandalism referred to by Lord Judge. None of the other features, such as force or trauma to the victim beyond the normal inevitable consequences of intrusion and theft, or the deliberate targeting of vulnerable victims and so forth, applied other than of course the offender's previous record itself. There remains the important feature of the appellant's plea of guilty, which is itself emphasised in Saw at paragraphs 18 and 26.
10. It seems to us that this is, in its way, a typical case of a burglar for whom section 111 provides its minimum sentence. That sentence itself, in its way, reflects the acceptance in the earlier leading case on burglary of McInerney [2003] 2 Crim App R (S) 39 at paragraphs 32 and 34 where a starting point of four and a half years was accepted for a case of an offender with two or more previous convictions for domestic burglary. That translates to a starting point of three years on a plea of guilty.
11. In any event, section 111, as was emphasised by the Lord Chief Justice in Saw itself, is not a starting point but a minimum. Nevertheless, it seems to us that there is nothing about the facts of this case which need take this appellant beyond that minimum on his plea of guilty. In particular, the very important factor of the impact of the offence on the victim in this case does not require any loading of the sentence.
12. The sentencing judge inferred that the burglary must have caused distress and insecurity, and we can well understand that, but there is no evidence in the detailed witness statement of the complainant, which we have read, to suggest any further impact than that. Indeed, her witness statement does not in itself address the question of distress, insecurity or impact at all.
13. In these circumstances, we think that this is a typical case of a drug addict committing repeated domestic burglaries for which section 111 was designed. There are no further aggravating features beyond the appellant's record, and we would therefore allow this appeal to this limited extent: that for the sentence of four years, which we quash, we substitute a sentence of three years.
14. I should just mention that as Mr Harnett is not here and, as I understand it, has not waived his right, we should allow seven days in case he wishes to say anything about this. I am not sure there is anything he can say since he comes up against his minimum sentence of three years.
15. MR DEANE: I am grateful, my Lord.