England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		23 July 2009

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Russell Bastow. He is 29 years of age, having been born on 2 August 1979. He has a bad record. He has 38 previous convictions for a total of 131 offences, 74 of which are offences of dishonesty -- acquisitive crime committed to feed a long-standing drug habit. Twelve of those offences of dishonesty are offences of burglary, of which eight were domestic burglaries. Four separate burglary convictions have been recorded since November 1999. On the most recent occasion, eight further burglary offences were taken into consideration when sentence was passed.
3. On 15 May 2009, in the Crown Court at Swindon, before His Honour Judge Field, having earlier pleaded guilty to a further offence of dwelling-house burglary, the offender was sentenced to twelve months' imprisonment suspended for 18 months. The period of suspension was subject to a number of conditions: a requirement of supervision, a drug rehabilitation order for six months, and a requirement that he complete a programme to address his drug-related offending.
4. The victim of the burglary was an elderly widow, aged 88, who suffers from Alzheimer's disease. Her mobility is limited. Nevertheless, she lives alone in a bungalow in Chisledon.
5. On 6 April 2008 her son took her out to lunch. They left her home at about 12.45pm and they returned at about 7.15pm. They discovered that her front door was open. When they went into the house they found that her bedroom was in disarray. Her drawers had been pulled out, the contents had been thrown onto the floor and onto her bed. A purse, a bank card, a bus pass and about £20 in cash were missing. Unsurprisingly, she was distressed. She noticed a small piece of bloodstained tissue on the sitting room floor. When the police arrived she pointed it out to them. Scientific tests revealed that the blood on the tissue matched that of the offender.
6. The offender was arrested on 14 April 2008. In interview he said that he had been in the area with a friend during the previous weekend, that he had cut his leg, and that he had used a piece of tissue to cover the cut on his leg. He could not, however, offer any viable explanation of how the piece of tissue happened to end up in the victim's home.
7. Since the burglary, the victim has had the courage to continue to live on her own at her home. However, unsurprisingly, she is now extremely nervous. New locks have been fitted to the door, but she is now too frightened to open any of her windows.
8. It is clear from the offender's antecedent history that the courts before whom he has appeared have been alert to the problems created for him by his long-standing, drug-taking habit. No doubt for that reason, and almost certainly for that reason alone, from time to time the courts have taken a merciful, or constructive rehabilitative course designed to enable him to be provided with assistance to address his drug-taking habit in order to break himself of it. Just about everything has been tried, without success. In February 2004 an order was made for drug treatment and testing for 18 months. That was revoked following the imposition of a custodial sentence in September 2004 for a further offence of dwelling-house burglary. The offender continued to serve that sentence until February 2006. Since then he has been convicted on three occasions (November 2006, March 2008 (for an offence committed in November 2007), and May 2008 (for an offence committed in January 2008)) for possession of Class A drugs (heroin and crack cocaine).
9. A pre-sentence report was before the sentencing judge. It included an assessment by the Inclusion Drug Services dated 12 May 2009. The author of the report informed the court that the offender had started using heroin at the age of 12 and that there was a clear pattern of dishonesty which was linked to the misuse of drugs. The current offence was motivated by the need to fund the drugs that the offender required to feed his addiction. The report pointed out that the offender was now living with his partner and her mother and that there was a new stabilising factor in his life, by contrast with his situation at the time when he committed this burglary, when he had been of no fixed abode and unemployed. The date when the offender was said to have been referred to the Inclusion Drug Service was described as March 2009, but that was an error; it was, in fact, 2008. The report described the offender as doing well in the course of the assessment and work. The author of the report did not support the imposition of a custodial sentence on the ground that it might not provide the Prison Service with sufficient time to complete the work of addressing offending behaviour and substance misuse issues. Instead it was proposed that there should be supervision with a drug rehabilitation programme and a programme to address substance-related offending. The judge accepted that recommendation.
10. It is clear from the pre-sentence report and from all the other information before us that the offender remains highly likely to be reconvicted. The drug-abuse problems have not been addressed. The author of the report accepted that the high risk of reconviction would continue until the offender was able satisfactorily to address the issues which underpinned his drug and indeed alcohol misuse. The up-to-date material sets out that in relation to the drug treatment the offender could be doing better. We have been asked to ignore the fact that he has been arrested again and once more charged with another dwelling-house burglary. Although we do not suggest that that is a course which would normally be taken, for present purposes we are content to do so.
11. Pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the offender falls within the requirement for a minimum sentence of three years' imprisonment to be imposed for a third domestic burglary, as provided by subsection (1). Subsection (2) requires the court to

"impose an appropriate custodial sentence for a term of at least three years, except where the court is of the opinion that there are particular circumstances which --

(a) relate to any of the offences or to the offender; and

(b) would make it unjust to do so in all the circumstances."

12. There is no mention of the statutory provisions in the sentencing remarks, although it is apparent from the transcript of earlier discussions with counsel that the judge was aware of them. He set out the facts of the offence: the return of the elderly lady to her home to find her belongings in disarray, and the impact that the burglary has had on her. He noted that there was some improvement in the offender's lifestyle because he now had a stable relationship and that his drug testing had produced negative results. The judge said:

".... I am going to pass a suspended sentence of imprisonment."

He passed the sentence we have indicated. He said more than once that this was to be a final chance; there was to be no back-sliding. The offender's future was in his own hands. We cannot discern from the sentencing remarks the reason why the judge thought it would be unjust to operate the statutory assumptions.

13. The submission before us, on behalf of the Attorney General, is that there are a number of aggravating features: first, this elderly lady was a vulnerable victim. It is true that, fortunately, she did not happen to be in her home when the burglary took place. She returned to find that her home had been turned over and her bedroom was left in a state of disarray. The burglary has had a direct impact on her sense of security, which means that she no longer opens the windows in her home. That makes this a serious dwelling-house burglary. The offender has numerous convictions for dwelling-house burglary and he has failed to respond to earlier efforts, now going back some years, to achieve his rehabilitation.
14. The Attorney General acknowledges that there is one mitigating feature: the offender pleaded guilty. Although the guilty plea was at the very last stage, some credit should be given for it.
15. It is pointed out to us by Mr Tregilgas-Davey on the offender's behalf that this was not a pre-planned burglary. The home was not targeted. Although it turned out to be the home of an elderly lady, it was not chosen because of her frailty and vulnerability. It is also suggested that the improvement in the offender's lifestyle should be recognised and that the judge was entitled to take these considerations into account in deciding to disapply the statutory provisions. The offender now had accommodation and a stable relationship, and there was some suggestion that progress was being made with his drug-taking habit. We are asked to accept that there was evidence of real efforts being made to break the drug habit. In addition, the offender has been subject to curfew arrangements for some time, which have had a significant effect on his liberty and freedom to move about as he would normally wish.
16. We accept the submission on behalf of the Attorney General that the judge was in error in failing to apply section 111 of the 2000 Act. We can find no sufficient justification for the decision not to impose an immediate custodial sentence on the offender, and for the starting point to be not less than the specified minimum period. Although just about everything has been tried, the offender continues to commit burglary of people's homes in order to feed his drug habit. Maybe the habit makes it impossible for him to resist the temptation to commit burglary, but there is here no sufficient evidence to justify the conclusion that the time has come to anticipate real, genuine improvement, or that the habit of resorting to dwelling-house burglary has at last been broken, or even that there are serious positive signs that it has been broken.
17. In our judgment the section 111 provisions should be applied. We shall so order. We consider that it would be unjust to ignore the guilty plea, limited though the credit should be in this case. We also conclude that it would be unjust to ignore the fact that the offender has been on curfew. All that said, we consider that the appropriate sentence is one of two-and-a-half years' imprisonment. Accordingly, we shall substitute that sentence for the order made by Judge Field. That sentence will take effect from today. No additional direction under section 240 of the 2003 Act is appropriate.

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