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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Booker & Anor, R v [2009] EWCA Crim 311 (18 February 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/311.html
Cite as: [2009] 2 Cr App R (S) 84, [2009] 2 Cr App Rep (S) 84, [2009] Crim LR 458, [2009] EWCA Crim 311
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE BLAKE
MR JUSTICE BURNETT
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| R E G I N A | ||
| v | ||
| RORY BOOKER | ||
| TYE HUNTER | ||
| GAVIN STANNARD |
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Mr I Groom appeared on behalf of Hunter
Mr C Lowe appeared on behalf of Stannard
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- MR JUSTICE BLAKE: On 16th October 2008 at the Grimsby Crown Court, His Honour Judge Moore sentenced these three appellants to the following terms. The appellant Booker on his plea of guilty to burglary was sentenced to four years' imprisonment. The appellants Hunter and Stannard offered pleas to handling stolen goods that were acceptable to the Crown in lieu of burglary and they were both sentenced to 30 months' imprisonment. Times spent on remand were ordered to count towards sentence. For completeness it should be mentioned that the appellant Hunter was in breach of an 18 month community order for taking a vehicle without consent. That order was revoked and no separate penalty was imposed. All the appellants appeal to this court on the basis that the starting point must have been too high in respect of the sentence for Booker; four years on a plea suggests that the learned judge had six years in mind and the handling stolen goods sentences were equally too high in terms of the relationship to the sentence imposed upon Booker.
- Dealing with the burglary itself, this was a day-time burglary of a dwelling-house, unoccupied at the time, where goods of some £1,100 were taken and it seems that there was damage to the property in the level of some £500. Other than that there was no particular feature that aggravated it beyond the understandable distress and concern that any burglary of a dwelling-house would cause to an owner occupier. The goods stolen were found in the possession of the other two appellants and it is on that basis that their plea to handling proceeded.
- The appellant Booker, who was 25 at the date of sentence, had substantial previous convictions but the sentencing problem that the learned judge faced was as follows. On 16th September 2004 at the Great Grimsby Crown Court for a variety of offences of robbery, aggravated vehicle taking, being carried in a motor vehicle taken without consent, another count of aggravated vehicle taking and one separate occasion of wounding with intent to do grievous bodily harm and finally for attempted robbery, the appellant was sentenced to a total of six years in a young offender institution, the sentence being made up of three years plus 18 months consecutive plus 18 months consecutive. By reason of the burglary that he had committed on release from licence he was in breach of those licence conditions and he was recalled. He had in fact at the time of sentence another 20 months to serve in respect of the breach of licence. That would be time that he would serve to the end and therefore effectively if a further determinate sentence was to be imposed it would make no difference to the custodial term unless it was a custodial term of more than 40 months, since he would serve half of the determinate term before being released on licence.
- It is accepted before us that the learned judge had no power to make any sentence on the burglary consecutive to the period that he had to serve for breach of his licence condition, but it is submitted that that does not justify imposing a sentence that is longer than otherwise would be the case for the burglary. We are grateful for the submissions advanced but we cannot accept them. As Parliament has made it plain that the criminality has to be reflected in a single sentence imposed after the recall to licence and that sentence cannot be made consecutive, as might otherwise have been the case, then in order for any additional punishment to be imposed for a burglary then a longer than normal sentence within the maximum range of course has to be imposed. That is what the judge explained he was doing and that is what he did, with the effect that for the burglary before he is released on licence again this appellant will only in fact serve an extra four months. Four years' imprisonment gives a release on licence of 24 months; he is already serving 20 months for the breach of his previous licence and so that is why the period of four months is calculated. In all the circumstances of his very serious offending and the fact that the return to licence was because of the breach of his licence, and not a substantive sentence for the burglary itself, we conclude that the judge was entitled to take the course that he did and this application does not succeed.
- Turning then to the appellants Hunter and Stannard, they also have substantial records but the problem of return to prison on licence did not arise in their case. We would accept the submission that on pleas of guilty to handling sentences of two-and-a-half years would be too high and the sentence imposed upon the appellant Booker has been explained in the remarks that the court has just made. Therefore the judge had to think again in terms of the total sentence that should be imposed for handling. In our judgment the sentence of two-and-a-half years was too long and we propose to quash those sentences and impose in their stead sentences of 18 months' imprisonment. The periods spent in custody on remand will count towards that sentence and to this extent their appeals are allowed.