England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17 March 2015

1. THE RECORDER OF MIDDLESBROUGH: On 8 May 2014 at the Crown Court at Chester at a preliminary hearing, this appellant pleaded guilty to two offences. Subsequently on 23 October he was sentenced as follows: in respect of count 1, burglary of a dwelling house, 28 months; in respect of theft of a motor car taken at the same time as the burglary, 2 years consecutive to the 28 months, bringing about a total sentence of 4 years and 4 months. He appeals against that sentence with the leave of the single judge.
2. The facts of the case can be briefly summarised as follows. The appellant lived in Manchester. He travelled to the countryside of Cheshire, and in particular the village of Bollington, he was to say for social purposes, going for a night out in nightclubs. The learned judge found as a fact that it was in order to carry out these offences.
3. He entered the complainant's home. He entered through an apparently insecure patio door. This was in the early hours, certainly between the hours of 3 am when the householder was awake with his then sick child and 7.30 am when the appellant escaped and was observed by a neighbour. Once in the house he stole a handbag, taking from it money. He also stole a key to the car which he then subsequently drove away. That was a Volkswagen Golf, valued at £17,000. The rest of the contents of the handbag were scattered on the patio floor. He stole a smartphone and a tablet.
4. The car was subsequently found in Manchester shortly afterwards with new plates. It may be said that it was stolen to order. The neighbour saw the car being driven away in company with another car, it was said being driven by the appellant's then girlfriend. Accordingly, this was an offence which was committed by two people and the learned judge was entitled to say planned. That car, his car, was to be seen on closed-circuit television. It was traced to his home address. That was searched and some of the stolen property was found.
5. As to the defendant's antecedents, he was 22 at the time. He has 21 offences bringing about 10 convictions. When he was but 15, on 20 June 2007 he was convicted at the Minshull Street Crown Court for conspiracy to burgle. That, we are told by his counsel today, involved a "home invasion", and it resulted in his being sentenced to a detention and training order of 18 months. On 10 December 2012 he committed a dwelling house burglary which resulted in a sentence of 22 months. He was released from that sentence in December 2013. This offence for which he was sentenced was not, however, the subject of a mandatory minimum term because conspiracy to burgle does not qualify.
6. But that was not the end of his offending. He has a number of offences of taking without consent, including aggravated taking without consent, and in 2011 he served a sentence of 3 years for robbery. In other words, for someone so young, he has a very bad record indeed.
7. In his sentencing observations, the learned judge said this:

i. "It is quite plain from the evidence that you came up from Manchester with another vehicle and another or other persons intent on crime and in the early hours of the morning you came upon the unfortunate occupants of 19 Princes Drive in Bollington."

8. He found that the sentences should be ordered to run consecutively.
9. In his grounds of appeal, the appellant makes a number of points. He said that the learned judge failed to take account of the defendant's contention, not disputed by the Crown, that this was not a targeted offence of burglary, the defendant travelling away from his home area to commit the offence; rather, it was an opportunistic offence It was said that the defendant, whilst a passenger in his co-defendant's vehicle, was driving around , after spending time socialising in nightclubs and, stopping to urinate, saw the opportunity of a door being open and took from the porch the keys, hence the theft of the motor vehicle. That was an account and a contention which the learned judge did not accept, and we can well understand why he was not prepared to accept it.
10. It is further said in the grounds of appeal that the total sentence was excessive and the two sentences should not have been ordered to run consecutively.
11. Thirdly, a point is made as follows: that the judge should have taken into account the fact that the appellant's time spent in custody from arrest to sentence as a result of his being recalled on licence would not be deducted from his sentence. It is said that as a result of the commission of this offence, whilst subject to a licence the defendant was recalled to custody to serve the remaining balance of that sentence. Mr Palmer accepts that, whilst this submission, at first blush is far from attractive, indeed is an aggravating feature of the offence, the consequent result is that the sentence imposed by the learned judge on 23 October 2014 will not begin to run until after the expiry of the licence period. In the result, the applicant's estimated date of release has been provided as 22 December 2016.
12. We remind ourselves of the decision of this court presided over by the Vice President in R v Kerrigan & Anor [2014] EWCA Crim 2348, where at paragraph 57:

i. "Applying those principles to the facts here, the appellants do not qualify for any automatic reduction in their sentences. They breached their licence, they were recalled to serve the balance, or part of the balance, of an existing sentence and they were, therefore, detained pursuant to a custodial sentence for most, if not all, the time they were on remand in relation to the subsequent offence. In those circumstances Parliament's intention is clear: a day counts as time served in relation to only one sentence. Section 240ZA prohibits double counting. Unless, therefore, the appellants can bring themselves within the judge's general discretion to do justice, the periods they spent on remand which coincided with time spent in custody on recall should not be counted twice."

13. There is no grounds for the learned judge and now us exercising our discretion, and therefore we find no merit in that ground of appeal.
14. Although the appellant did not qualify for the mandatory sentence of 3 years, the learned judge was perfectly entitled to take into account the fact that this was the third offence involving burglary of a dwelling houses. Further, from the facts of the earlier offence, the appellant was clearly a man who was prepared to commit burglary, and in doing so was prepared for a confrontation with the homeowners if needs be, hence the offence of conspiracy which amounted, as we have said, to a "home invasion". He committed these offences whilst on licence, which was a clear and obvious aggravating feature to the offence. The learned judge was perfectly entitled to sentence on the basis that the appellant drove from Manchester to commit burglary in the area of Cheshire.
15. There can be no argument that this was a category 1 offence: it was committed by a professional criminal; the occupants were at home and the value of the property taken, which includes the value of the car, was clearly significant. Further, it is an offence of high culpability. There was, in our judgment, a clear finding that the learned judge was entitled to find a significant degree of planning and/or organisation. He came from Manchester with others to commit this offence and to steal high-value motor cars. The fact that he was not alone was a further factor which places this in the category of higher culpability. There were further aggravating factors: his previous convictions; these offences were committed on licence; a child was at home; and the offence was committed at night.
16. Category 1 has a starting point of 3 years with a range of 2 to 6 years. As my Lord, Pitchford LJ, has indicated, there are certainly (and this court has indicated that there are) occasions when the number and extent of the aggravating factors can extend the range upwards. This is such a case. The number and extent of the aggravating features are such as to place this above the category with an upper range of 6 years. We would not have ordered the sentences to run consecutively. However, in all the circumstances, we take the view that the appropriate starting point of 6 1/2 years taken by the judge was not manifestly excessive. Accordingly, this appeal is dismissed.