England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27th July 2016

1. LORD JUSTICE TREACY:
2. This is an Attorney-General's Reference of sentences he considers to be unduly lenient.
3. On 17th March 2016 in the Crown Court at Basildon these offenders were convicted of an offence of burglary, contrary section 9(1)(b) of the Theft Act 1968. They were sentenced on the same day. Cessford received 3 years' imprisonment, Maxwell received 21 months' detention in a young offender institution.
4. The facts show that the burgled premises were a residential property comprising the main house and an annex which was an integral part of that property. On 8th July 2015, in the early afternoon, the householder's son, who lived in the annex with his wife and his own young son, heard footsteps coming from the main house. He went to investigate and arrived in his parents' bedroom. There he saw Cessford, standing about 10 metres away, going through drawers in his mother's dressing table. He shouted at the offender who turned to face him. The offender had a knife in his right hand, held in a clenched fist. The offender's arm was lifted up and the blade of the knife was pointed straight up. Cessford did not make a movement but the householder was terrified. He felt scared for his life. He heard a second male voice. He ran from the bedroom back to the annex and locked himself inside. He then called 999 in a petrified state.
5. The two burglars left the premises. They had taken with them, amongst other things, a significant quantity of jewellery of sentimental value. The knife which Cessford had obtained from within the house was recovered near the front door. The obvious question to be asked about the knife is why it was taken upstairs at all by Cessford.
6. A series of CCTV clips from various sources picked up the individuals responsible. They were later identified by a police officer. Both offenders made "no comment" in interview. They denied their guilt at trial. There was evidence that Cessford had asked a former girlfriend to dispose of clothing he had been wearing at the time of the offence. In the victim impact statement the householder describes how he and his wife had been affected by the burglary and were left feeling nervous and insecure.
7. Cessford is now 23 years of age. He has been convicted of 18 offences, including three convictions for domestic burglary recorded in 2008 and on two separate occasions in 2011. He also received a conviction for handling stolen goods in 2010. He received 18 months in a young offender institution for the last of those burglaries and a concurrent 4 year sentence for causing death by dangerous driving on the same occasion.
8. Maxwell was 17 years of age at the time of the offence. He was a couple of months shy of his 18th birthday. He had 17 previous convictions, four of them for domestic burglary. Those convictions were recorded in August 2013, two in June 2014 and the fourth in September 2014. In addition, on that last occasion, there was a conviction for an attempted burglary. Maxwell had also been sentenced for handling stolen goods in March 2014. Cessford was therefore a third-strike burglar liable to a minimum sentence of 3 years. Maxwell was not, since his convictions were recorded when he was under 18, as he was when this offence was committed.
9. Before we deal with the submission that the sentences were unduly lenient there is a jurisdictional point to be resolved. Under section 35(3)(b)(i) of the Criminal Justice Act 1988 the Attorney-General may refer a case to this court as unduly lenient if the sentence was passed on an offence that is triable only on indictment. These two offenders had been charged with an offence of aggravated burglary which is triable only on indictment. They had been sent to the Crown Court on that charge pursuant to section 51(1) of the Crime and Disorder Act 1988. Thereafter however, the Crown Prosecution Service concluded that the evidential test for an offence of aggravated burglary was not met. Accordingly an indictment containing a single count of burglary, contrary to section 9(1)(b) of the Theft Act was served on the court. It was on that indictment that these offenders were arraigned and tried.

In the case of Cessford no difficulty arises because by virtue of section 111(4) of the Powers of Criminal Courts (Sentencing) Act 2000, a dwelling-house burglary, where the accused is over 18 at the time of the commission of the offence and who has two previous separate convictions for domestic burglary is triable only on indictment.

As already stated that provision does not apply in Maxwell's case. The Attorney-General however relies on section 17 and Schedule 1, paragraph 28 of the Magistrates' Court Act 1980. These provisions provide that certain types of burglary are triable only on indictment. They include a burglary in a dwelling-house where any person in the dwelling is subjected to violence or the threat of violence - see paragraph 28(c). The Attorney-General submits that in the circumstances Maxwell falls within this provision, thus giving this court jurisdiction in relation to him.

10. Counsel for Maxwell submits to the contrary, urging that there was no evidence that the occupier was subjected either to violence or to threats of violence. It is further argued that whilst the burglary was a joint enterprise, the use of the knife was not a joint enterprise, it being asserted that the only person ever seen with the knife was Cessford and it being said that he was responsible for any threat if there was one.
11. We do not consider that that latter submission is a sound one. Consideration of R v McGrath [2004] 1 Cr App R 15 shows at paragraphs 12 and 13 that any use of violence and/or threat of violence is sufficient. The extent or degree of the violence used is not a consideration under Schedule 1, paragraph 28. The court in that case also rejected the proposition that violence threatened in the course of the complainant's attempt to prevent him leaving the premises took the matter out of paragraph 28(c).
12. The court disagreed with that submission, stating at paragraph 11 that paragraph 28(c) clearly referred to any case in which violence was offered in the course of the whole incident said to constitute the dwelling house burglary.
13. We consider that the wording of paragraph 28(c) is such that it refers to a type of burglary, namely one in which a person in a dwelling-house is subjected to violence or the threat of violence. It is not concerned with the roles or responsibilities of individual offenders. It is sufficient in determining the question of jurisdiction if the violence or threats took place during the course of the burglary without more.
14. That leaves the question of whether there was evidence that the occupier was subjected to threats of violence in this case. We note that Maxwell's counsel's own written submissions state that the evidence was that the knife was used to ward off or frighten the occupier. That of itself clearly indicates a threat.
15. In answer to a question by the court this morning, Mr Hill acknowledged that the inference to be drawn from the taking of the knife from the kitchen to an upstairs part of the premises was that the person concerned had taken it in case he was disturbed during the course of the burglary.
16. We note that in sentencing, the judge spoke of a confrontation between Cessford and the occupier of the house at the time when Cessford had a knife. We consider that in all the circumstances that there was clearly sufficient evidence to demonstrate a threat of violence during the burglary. That being so, this offence of burglary did fall within paragraph 28(c) and therefore was an indictable only offence. Accordingly, this court has jurisdiction to entertain the Reference in Maxwell's case as well as that of Cessford.
17. The Attorney-General's submission is in each case that the offence was a category 1 burglary within the Definitive Guideline. That has a starting point of 3 years, with a range of 2 to 6 years. There are a number of greater harm factors. In particular the loss of a substantial amount of jewellery of sentimental value, the presence of an occupier and the threat of violence. Higher culpability is indicated by the commission of the crime by more than one person and we remind ourselves that a knife was used to threaten.
18. The case is aggravated by the significant previous convictions of each offender and also by what was an untidy search of the property, even if it did not amount to ransacking. We also take some account of the ongoing effect of the burglary upon the victims' peace of mind although such unsettling effects are, at least in part, reflected in the guidelines themselves.
19. There is no mitigation available to either offender for a guilty plea, nor indeed is there any sign of remorse on their part. There was no pre-sentence report on either offender. It appears that one was thought to be unnecessary given the nature of the offence and the inevitability of a custodial sentence.
20. In Maxwell's case personal information concerning him was provided to the court at the time of mitigation. We have seen post-sentence reports on each offender. That in relation to Cessford shows poor conduct in custody; indeed he has subsequently been convicted for having an unauthorised article in prison. There is therefore nothing that can avail him in relation to those reports.As far as Maxwell is concerned, the report shows indifferent behaviour on remand but an improvement to satisfactory behaviour since the time of his sentence.
21. In each case counsel submits that the sentence was lenient, but not unduly so. In Maxwell's case reliance is placed in particular upon his age at the time of the offence and the fact that he was not the person who brandished the knife. The judge was told that whilst Maxwell has been in custody his partner has given birth to a child.
22. In Cessford's case the judge passed the minimum sentence pursuant to section 111. This happens to coincide with the starting point for a category 1 burglary offence. The judge passed such a sentence notwithstanding a number of greater harm factors. Their presence justifies upward movement from the starting point. In addition, there were a number of aggravating features to which we have already referred.
23. This court in R v McKay [2012] EWCA Crim 1900, stated that when sentencing an offender who qualifies for a mandatory minimum sentence the correct approach is to apply the Sentencing Guidelines ensuring that the term is no less than the minimum required. The minimum term is not the starting point. In some cases a sentence would be significantly greater.
24. It seems to us that applying the guideline in Cessford's case a significant uplift from the 3 year starting point was required. We have come to the conclusion that a term of at least four-and-a-half years' custody should have been imposed. The term of 3 years was therefore unduly lenient. We give leave to the Attorney-General and in Cessford's case substitute a term of four-and-a-half years' imprisonment for the 3 years imposed below.
25. Turning to Maxwell's case, it is acknowledged by the Attorney-General that given his age at the time of offence there is a basis for drawing a distinction between him and Cessford. There is no evidence of particular immaturity on Maxwell's part beyond that implicit in his chronological age. He was close to the age of 18 when the offence was committed. The Sentencing Guidelines Council's Definitive Guideline on Sentencing Youths demonstrates that in those circumstances the starting point will come closer to that appropriate for an adult. Nonetheless, Maxwell was younger than Cessford and under 18.
26. We also have to take account in his case of Maxwell's significant previous convictions for domestic burglary. We think it fair on the facts of this case to regard him as a somewhat lesser offender than Cessford was. Nonetheless, we are satisfied that the sentence which was passed upon him was one which was unduly lenient. For his involvement in the matter, we consider that a sentence of 33 months was appropriate, that is some 12 months more than the sentence which the judge below imposed. Accordingly, we give leave to the Attorney-General and substitute a term of 33 months for that which was imposed below.