England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		23rd September 2016

LORD JUSTICE BURNETT:

1. The appellants, Daniel Calvert and Sean Oliver, are brothers. Calvert was aged 18 when the aggravated burglary with which this appeal is concerned was committed. Oliver was aged 21.
2. On 12^th April 2016 in the Crown Court at Durham the appellants pleaded guilty to a single count of aggravated burglary in circumstances which entitled them to full credit. On 4^th May 2016 Mr Recorder Jackson QC sentenced Daniel Calvert to seven years' detention in a young offender institution and Sean Oliver to eight years' imprisonment. We pay tribute to the Recorder for the comprehensive nature and clarity of his sentencing remarks. Various other counts were ordered to remain on the file on the usual terms.
3. The appellants appeal against sentence with the leave of the single judge.
4. The appellants were in dispute with a man called Dax over a very small drug debt. On 11^th March 2016 he and the appellants had a row. Present was a woman called Shireen Myers who, it appears, was supportive of Dax.
5. At around 6pm on the following day, 12^th March, Miss Myers was at her home address. Also there was her six month old baby and a male friend. She heard a knock on the front window, which she ignored. She went into the kitchen from her sitting room. She then heard a very loud bang coming from the sitting room, which caused a picture to fall from the windowsill onto the floor. She ran back into the sitting room to see what was going on. The curtain had been closed. She pulled it to one side and saw Oliver outside. He was running backwards and forwards from the window in an agitated state, shouting, "It's all your fault". She said that she did not know what he was talking about. He continued banging and shouting, so loudly that she opened the sitting room window to tell him to shut up as she did not want the baby to be woken up. The baby was in the sitting room.
6. Oliver did not desist. At this stage his brother, Calvert, using the bottom of his foot, kicked the door near to its handle. After two or three attempts at kicking the door, the panel was smashed out. Miss Myers continued asking them to stop. She kept shouting, "My baby is in here". She leapt back in the sitting room to her fireplace, by which time Calvert had entered the house and entered her sitting room. He was quickly followed by Oliver. He had in his hand a small bottle with a green cap. She did not know what was in his hand, but he said, "Do you understand what this is? It's ammonia. I'm going to blind you with it. It was you, it was you". The cap was off the bottle and he shook it towards her. Some of the contents landed on her clothing. She believed the liquid to be acid and was terrified that it was about to be thrown in her face. She was also terrified for the safety of her baby. Both appellants were shouting at her. The whole event lasted about ten minutes. In the course of it Calvert said words to the effect of, "I wouldn't push your luck because I've got a knife". He did not produce the knife until the end of the events. Calvert ran around the house shouting. He went upstairs looking for Dax, who they believed to be there. The man who had been in the house had hidden.
7. In due course the appellants came to appreciate that Dax was not in the house and they left. We note that both of them were drunk.

8. That, in summary, provides the factual background to the sentences which were imposed.

8. We shall seek to identify the factors by reference to the definitive guideline on aggravated burglary and burglary which informed the decision of the Recorder which we shall explain in more detail. It was common ground before the Recorder that for the purposes of the definitive guideline this was a category 1 offence. The starting point for such an offence is ten years' detention with a range of nine to thirteen years. Factors indicating greater harm, which were present in this case, were in particular vandalism to the property, significant trauma to the victim, the threat of serious violence, and the involvement of weapons – that is to say, both the ammonia and a knife. Factors indicating higher culpability were that the premises were targeted because the appellants thought that Dax was present. Additionally, the appellants plainly intended violence against Dax and had attended at the scene with weapons for that purpose. Further, there was more than one offender. It is these combined factors which located the sentence appropriately in category 1.
9. The guideline then identifies a series of factors which increases seriousness. Those present in this case are: first, that a child was involved; second, that the offending occurred whilst the appellants were under the influence of drink; third, and importantly, both the appellants were on licence following release from custodial sentences; and fourth, they had multiple previous convictions, although not for anything of this seriousness.
10. Oliver had been released on licence on 6^th January 2016 for offences which included section 20 wounding. He had 15 other previous convictions, including two for arson. The Recorder was satisfied that the arsons were ancillary to acquisitive crime, in particular with regard to stolen vehicles. Nonetheless, the arson offences were of particular note. The balance of Oliver's offending was largely for dishonesty, but there was also an offence of possessing an offensive weapon.
11. Calvert's previous offending was, in aggregate, less serious. He had been released on licence in December 2015 from a 12 month sentence of detention for burglary. He had multiple convictions for dishonesty, vehicle taking and what might be described as low grade violence.
12. Much of the debate at the sentencing hearing was concerned with the question whether the appellants were dangerous. The Recorder concluded that they were, but nonetheless took the view that because of their youth it was unnecessary to impose extended sentences. Long determinative sentences were inevitable. The problems of dangerousness could be addressed during the determinative sentences.
13. The Recorder concluded that the aggravating features of this offence should result in the starting point rising from ten years to 13 years, before consideration of mitigation and discount for the guilty plea. In Oliver's case he reduced that to 12 years to reflect personal mitigation. It is unnecessary to set it out in detail, but it centred on a troubled background and remorse. A full discount for the guilty plea was given, to arrive at the sentence of eight years' imprisonment.
14. In Calvert's case the Recorder reduced the starting point further on account of his youth and the less serious history of previous offending. The Recorder indicated that he had arrived at eleven years before discount for plea. That said as we have indicated, the sentence was seven years' detention, which suggests that the starting point was reduced in fact to ten and a half years. We shall proceed on that basis.
15. Mr Cordey, for whose careful and persuasive written submissions we are very grateful, submits that, despite the seriousness of the offence, in moving from the starting point of ten years to 13, before the various adjustments, the Recorder travelled too far. On behalf of Calvert, he submits that a greater reduction was appropriate for his age. We note that he was three months short of his 19^th birthday.
16. On behalf of both appellants, Mr Cordey draws our attention to the judgment of this court in R v Forrest [2012] EWCA Crim 3112. In that case of aggravated burglary the custodial element of an extended sentence was reduced to seven years, reflecting a starting point of about ten and a half years. The appellant was older than either of the appellants before us and, submits Mr Cordey, the underlying circumstances of the offence appear to have been worse.
17. We derive little assistance from the citation of a decision dependent entirely upon its own facts. In any event the appellant in that case had no previous convictions for ten years before his offending.
18. Mr Cordey points to a number of factors which, in his submission, tend to reduce the overall seriousness of what occurred. There was, in fact, no physical or psychological injury. In making that submission, Mr Cordey does not seek to diminish the traumatic effect of what occurred. That is reflected in the Victim Personal Statement taken a few days after these events. The Recorder referred to the psychological robustness of the victim.
19. The damage to the property was not substantial, although there are no signs of the appellants being in a position to pay for it. Mr Corey emphasises remorse.
20. We are persuaded that the Recorder travelled too far within the category 1 bracket in setting the starting point before the reductions for personal mitigation and guilty pleas. This was, undoubtedly, a difficult sentencing exercise, encompassing an horrific event, surrounded by aggravating features, but also mercifully, and in our judgment significantly, no actual injury, physical or psychological. That said we are unpersuaded that the Recorder failed adequately to reflect Calvert's youth in making his reduction.
21. Rather than starting the calculation of sentence in these cases at 13 years, we have concluded that eleven and a half years would be the appropriate figure. Reflecting the Recorder's approach, the result will be as follows. In Oliver's appeal there will be a further reduction of one year to ten and a half years to take account of personal mitigation. With a full discount for plea, the resulting sentence will be one of seven years' imprisonment.
22. In Calvert's case, to reflect the approach of the Recorder, from the revised starting point there will be a reduction to nine years, to reflect personal mitigation and youth. Then, applying the full discount for his guilty plea, the result is one of six years' detention.
23. In the circumstances we allow both appeals. We quash the sentences and substitute those we have identified. The remaining ancillary orders made by the Recorder are undisturbed.