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
		1st September 2017

Friday 1^st September 2017

LADY JUSTICE SHARP: I shall ask Mr Justice Kerr to give the judgment of the court.

MR JUSTICE KERR:

1. The Registrar has referred this application for leave to appeal against sentence to the full court. The applicant is 39 years of age. He was described by the judge below as part of a team of professional burglars of non-domestic premises.
2. On 10^th October 2016, having pleaded guilty before magistrates, the applicant was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of seven non-domestic burglaries. On 12^th October 2016, in the Crown Court at Southwark, before His Honour Judge Griffith, the applicant pleaded guilty to those seven offences.
3. On 14^th October 2016, before Mr Recorder Curtis QC, he pleaded guilty to two further non-domestic burglaries on an indictment containing two counts. He was sentenced that day at Southwark Crown Court by the Recorder for all nine of those burglaries. On each of them, the Recorder sentenced him to four years eight months' imprisonment, all nine sentences to run concurrently with each other and concurrently with another prison sentence he was already serving. The Recorder made a victim surcharge order of £120 and ordered the applicant to pay compensation of £780 to one of the victims, a company called Service Max Europe.
4. The applicant was part of a team of professional burglars. He had been sentenced on 3^rd June 2016 in the Crown Court at Blackfriars to 45 months' imprisonment (that is, three years and nine months' imprisonment) for eight similar non-dwelling burglaries, going back to 2012. The value of items stolen in those burglaries was in the region of £150,000.
5. The current offences, nine in total, were committed between December 2015 and April 2016. They were committed by the applicant together with a combination of other men. The brief facts of each were as follows:

The seven offences committed for sentence:

(1) No property was taken in the December 2015 burglary but damage was caused by two men to a commercial property of a music production company in central London.

(2) On 6^th January 2016 two men entered the premises of an advertising agency in Monmouth Street and stole 17 Dell laptops with a value of around £25,000. In addition, £300 worth of damage was caused by forcing locks.

(3) On 16^th January 2016, they forced the locks at the premises of a loan company in Tottenham Court Road. No property was taken.

(4) On 17^th January, two men forced the locks of certain shared work space premises, causing damage, but no property was taken.

(5) On 25^th February, three men forced the locks of premises in Islington and stole £7,000 worth of laptops and MacBooks.

(6) On 22^nd April, the premises of a company in an office block in Old Street were burgled at night by three men.

(7) The same night, another company in the same office block was burgled by three men. In the two combined burglaries ((6) and (7)) committed that night, property was stolen valued at £2,000 and £8,000 respectively.

The two burglaries on the indictment

(8) On 1^st February 2016, the offices of Service Max Limited were burgled at around 7pm. Office staff were still present. The applicant and others were later seen on CCTV to enter and leave the building several times between 7pm and 8pm, unnoticed by the office workers. £15,000 worth of MacBooks, a passport and a phone charger were stolen.

(9) On 7^th February two men entered the premises of The Office Group in Central London at around 10.15pm and stole computers valued at around £4,000.

6. Thus, the total value of the property stolen in the nine offences was in the region of £60,000 and the value of the damage caused, about £10,000.
7. Sentencing the applicant, the Recorder said that he had pleaded guilty to nine offences of burglary of non-residential properties, namely office premises. He was part of a team of professional burglars and an organised criminal team which committed very many offences in a very short time and successfully managed to dispose of all the valuable property – about £60,000 worth – in a matter of days.
8. The applicant's method of operation was slick. He smashed his way into offices and caused a serious amount of damage. Computer equipment was seized, usually high end, high value Apple notebook or laptop computers. On one occasion, he was seen to go back and forth into the premises. He did not only steal the hardware for money, but he stole the software inside containing vital files of commercial and personal value.
9. The total loss was about £60,000 with damage estimated at around £10,000. His immediate disposal of the property was such that when the police went to his address there was nothing except a sum of money, £780.
10. He was professional and unstoppable in this method of crime. In June 2016, after the offences dealt with by the Recorder, he pleaded guilty on his own to eight further offences of a similar nature with a combined value of about £150,000. On that occasion, he was sentenced, from a five year starting point, to three years and nine months' imprisonment, having received 25 per cent credit for the guilty plea.
11. The Recorder noted that he was arrested on 4^th May 2016 as a result of an excellent police operation. All the property had gone. He denied the offences at first, but then made admissions. The court was told that the £780 cash found in his possession was payment from the Benefits Agency. The court ordered that it be used to pay compensation.
12. The Recorder said that this was clearly a category 1 non-domestic burglary and the applicant had a high leading role. It was substantially aggravated by the fact that he committed it in an organised, professional way: it was planned, prepared and committed in a group of people.
13. The applicant had appeared before the courts on 22 previous occasions for 54 offences between 1993 and 2016. He had convictions for 31 theft and kindred offences, including theft from vehicles, taking conveyances without authority, non-dwelling burglaries and robberies. His custodial sentences included 45 months' imprisonment in June 2016 for non-dwelling burglary, 21 months' imprisonment in March 2014 for other non-dwelling burglary, 12 months' imprisonment in August 2014 for yet other non-dwelling burglary, and 12 weeks' imprisonment for an attempted burglary in 2012. Before that, he had been sentenced to four years' imprisonment for robbery in 1999 and three years' detention in a young offender institution for robbery in 1996. He had other offences to his name, including possessing Class A drugs with intent to supply, for which he was sentenced to 56 months' imprisonment in 2008 and three years' imprisonment in 2005; and for dangerous driving, for which he was sentenced to 12 months' imprisonment in 2008.
14. Mr O'Reilly, the applicant's solicitor advocate, submitted to the Recorder that had the previous matters which predated the June hearing all been heard at the same time, it would not have affected the sentence and the court would have regarded it as a round figure, allowing full credit for the guilty plea in respect of the current offences. Accordingly, Mr O'Reilly submitted, no additional sentence should be imposed. The court was told that the applicant had successfully completed a drugs rehabilitation course in prison. Much of the offending was carried out to finance his drug habit. In some cases that was mitigation, but he was so persistent that the court did not regard that fact as motivation for these crimes, or as mitigation. He was, and would remain, institutionalised. His antecedent history was an aggravating feature. It was a very serious series of offences.
15. The Recorder described them as "top end category 1" for non-domestic burglary. He took a starting point of five years. The aggravating features were: planning, professionalism, the group, voluntary damage caused, and, in the final offence, the presence of office staff and recklessness as to the concern that the offending might have caused them. The court could not say that, had this been dealt with in June 2016 together with the other previous matters, it would not have made a difference. There was a serious addition to that series of offences, with aggravating features.
16. The Recorder, as we have said, took a starting point of five years' custody, but because of the aggravating features, that was increased to six years and nine months. After full one third credit for the guilty plea, he was sentenced to four years and eight months' imprisonment on each count, all concurrent, and concurrent to the sentence already being served.
17. In support of the application for leave to appeal, Mr O'Reilly submitted in written grounds, which he has elaborated upon this morning, that the starting point of five years was too high, and well above the normal starting point of two years indicated in the sentencing guideline; that the addition of a further 21 months to the five year starting point for the aggravating features, involved an element of double counting; and that insufficient regard was paid to the principle of totality, as the burglaries were part of the same series of offences for which the applicant had been sentenced earlier in the year.
18. We disagree. This was a clear case of serial category 1 burglaries. It is accepted by the applicant that all the offences fell within category 1 in the sentencing guideline. If one views the nine burglaries for which the Recorder sentenced him, together with the eight burglaries for which he had been sentenced on 3^rd June 2016 at Blackfriars Crown Court, that makes a total of 17 burglaries, in which the property taken and the damage caused totalled about £210,000. The value of what was stolen at each individual property was significant, and the targeting of commercial premises would have caused substantial harm to the businesses by the loss of software and electronically stored information. This was a planned and sustained campaign. The top end of the range for category 1 offending is five years' custody. Concurrent sentences above the range were called for in this case. The margin between five years and the maximum of ten years for the offence is considerable. A sentence of six years and nine months' imprisonment after a trial was not arguably manifestly excessive.
19. However, in the course of his sentencing remarks the Recorder appears to have made a calculation error, in that he gave a full one third credit for the guilty pleas and therefore reduced, he said, the term of 81 months (that is, six years and nine months) to what he said was 54 months' imprisonment. That is, indeed, a reduction of one third. However, 54 months equates to four years and six months, rather than, as the Recorder said, four years and eight months.
20. It is clear that the Recorder intended to give the full one third credit for the guilty pleas, and not any lesser amount. We therefore think that it is appropriate to correct the arithmetical error. We therefore give leave. We quash the sentence of four years and eight months and substitute one of four years and six months' imprisonment.
21. For completeness, we should mention that we received a brief report yesterday from Her Majesty's Prison Pentonville, where the applicant currently resides. It is positive about the applicant's behaviour since he has been in custody there. That is to the applicant's credit, but it does not persuade us to alter our view of the sentences passed.