England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 12th October 2009

1. MR JUSTICE OPENSHAW: On 8th May 2008 in the Crown Court at Lewes the appellant, Wayne Diamond, pleaded guilty to one count of burglary and was sentenced by His Honour Judge Scott-Gall to 3 years' imprisonment. The time he had spent in custody on remand was ordered to count towards sentence. He now appeals against that sentence by leave of the single judge.
2. The facts are as follows. On 13th January, whilst the householder was out at work, the basement flat at 15A Cromwell Road, Hove, was broken into. The sash window was smashed, broken and glass was strewn across the floor. The flat was ransacked and property worth just over £2,000 was stolen. We have photographs showing the chaos and debris resulting.
3. The appellant was traced through his fingerprints and he was arrested a month later. Some of the property stolen was recovered. He made no explanation as to what happened to the rest of the property.
4. The appellant is now aged 40. He has 11 previous convictions for 19 offences which included some time ago a 4 year sentence for conspiracy to rob and assault occasioning actual bodily harm and one offence of burglary but that was not of a dwelling. He also had one offence of handling stolen goods. But he was not therefore a repeat burglar, let alone a prolific burglar, indeed this was his first conviction for burglary in a dwelling and he has not offended since 2005. He had a long history of misusing drink and drugs.
5. The judge took a dim view of the burglary of the damage caused and of the upset and distress which he said must have been caused to the householder. But there was in fact no evidence of particular trauma to the victim beyond the normal and inevitable consequence of intrusion into his house and home.
6. The judge considered his record. He sought to apply the guidelines as laid down in R v Saw & Ors [2009] EWCA Crim 1, but he felt the least sentence that could be imposed was fully 3 years' imprisonment. It is now said that the sentence was manifestly excessive and, as Mr Milne arguments, outside the guidelines. The judge found - correctly - the offence fell within the middle bracket of "limited raised culpability and/or impact", the general range for which is 9 to 18 months after a trial.
7. The general range for the most serious offences of this kind is 18 months to 4 years, sentences beyond the range are only appropriate in cases of extreme culpability. Since the judge must have taken a starting point of four-and-a-half years to end up at a sentence of 3 years upon a timely plea entered at the plea and case management hearing, it is argued with some cogency that this was well beyond the general range for the most serious offences of this kind and certainly far more than was warranted by the facts of this case.
8. Mr Milne concedes that the appellant had an unattractive criminal record and the loss of over £2,000 was not insignificant but there were no further aggravating features as identified in Saw present. We agree that this case came within the middle category as defined in Saw, with a starting point, after a trial of 9 to 18 months, having regard to his record and to the damage caused, we think that the facts of this case put it towards the top of that bracket. The defendant entered a timely plea. The result is that the sentence of 3 years is, in our judgment, plainly excessive. We will quash that sentence. We substitute a sentence of 12 months. As before the appellant is to have the credit for the time served before sentence is passed.