Author: Picken, Mr Justice
Last saved by: BAILII

No: 201700384 A4 
Neutral Citation Number: [2017] EWCA Crim 509
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 12 April 2017

B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE GREEN 
 
MR JUSTICE PICKEN 

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R E G I N A 

v 

KIERAN LUKE GILMORE 

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Computer Aided Transcript of the Stenograph Notes of  
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Ms A Earnshaw appeared on behalf of the Appellant
The Crown did not attend and was unrepresented

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J U D G M E N T
1.	MR JUSTICE PICKEN:  On 10 March 2016, at Sheffield Crown Court, the appellant pleaded guilty to an offence of criminal damage.  Subsequently, on 13 July 2016, he pleaded guilty on re‑arraignment to the offence of burglary of a dwelling.  
2.	He was sentenced for these matters on 5 January 2017 by His Honour Judge Dixon, receiving 27 months' detention in a Young Offenders Institution in respect of the latter and 1 month's detention (concurrent) in respect of the former.
3.	The appellant now appeals against sentence with leave of the single judge.  
4.	The facts of the offences may be relatively briefly stated.  On 27 December 2015, Jodie Holmes, a neighbour of the appellant's mother, left her house in Rotherham at 9.30 am and went to stay at her mother's address for the night.  She returned just after midday the following day to find that property had been stolen from her house, specifically a television purchased for around £60 to £70 and approximately £220 to £230 in cash consisting of £20 to £30 in birthday cards which had been left unopened on the mantelpiece of the living room and £200 which was in a purse located behind the television.  There was no forced entry because Ms Holmes realised that she had left the rear door of her property unlocked.  
5.	As a result of the burglary, scenes of crime officers attended at the property and carried out a forensic investigation.  They recovered fingerprint marks identified to belong to the appellant from the side of a vodka bottle in the kitchen and from a pirate money tin.  
6.	Later the same day, that is 28 December 2015, at around 9.30 pm, the appellant attended at his mother's address.  His mother told him about the burglary.  The appellant, who had been drinking, became distressed and upset.  He went to the back of Ms Holmes' house.  She told him to leave but he remained there in an agitated state.  She went into her property to call the police.  Whilst she was inside she heard a loud smash.  She returned to the rear of the property and saw that the window had been smashed with the appellant stood next to it.  
7.	The following month, on 27 January 2016, the appellant was arrested and interviewed in respect of the burglary.  He said that he had been drinking all evening with two of his friends, he was very drunk and fell asleep.  He was woken up the following day, in the morning, by his friends.  They had in their possession half a bottle of vodka and a child's money tin.  He knew straight away that they were items stolen from Ms Holmes' house next door because they were laughing and bragging about it.  He said that he took hold of the tin and looked inside it, noting that it contained loose change.  He drank some of the vodka before telling his friends to take the property back, which they did.  He insisted that he did not himself take part in the burglary but acknowledged that he drank the vodka knowing that it was stolen.  
8.	In respect of the criminal damage, he said that he had had a lot to drink and could not recall attending Ms Holmes' property nor smashing the window.  He explained, however, that he spoke to his mother, who told him that he was responsible for breaking the window of the property.  He therefore went to see Ms Holmes and apologised for smashing one of her windows.  He gave her £50 towards the cost of the repair to the window.  
9.	When sentencing, the judge had the benefit of an oral pre‑sentence report.  This referred to the appellant as having indicated his remorse.  He was drinking alcohol heavily at his mother's house and was also under the influence of cocaine and cannabis at the time of the offences.  This, the probation officer considered, was an underpinning trigger to the appellant's offending behaviour.  He had in the past had suicidal tendencies and from a very young age was diagnosed with ADHD.  He had applied for the Armed Forces and passed a medical but was unsure if he could pursue this career in view of his convictions.  Since he had been residing with his uncle as part of his bail conditions, he had kept away from any further offences.  He was assessed as a medium risk of serious harm due to his suicidal tendencies.  The proposal was, in the circumstances, that a suspended sentence be imposed with a programme requirement to address the appellant's substance and alcohol misuse.  
10.	In his sentencing remarks, the judge noted that the appellant was 19 years of age and that he was remorseful about both offences, although the judge expressed some doubt about whether the appellant's decision to go and apologise for smashing the window was because his remorse was genuine or whether it was an attempt to hide the fact that he was involved in the burglary.  
11.	The judge went on to refer to the burglary offence as involving greater harm for the purposes of the Burglary Offences Definitive Guideline (2011) before adding that it also entailed higher culpability because of what he termed group activity.  As such, the judge treated the burglary offence as a category 1 offence, which was aggravated by the fact that it was committed when the appellant was under the influence of drugs and alcohol.  In his view, this was, however, as he put it, balanced out by the fact that the appellant's history of offending was not as substantial as it might have been.  
12.	He also took account of the fact that the appellant had had what the judge described as "a very difficult year", which saw him living as part of his bail conditions away from home in Bradford, during which time he had not committed any offences and had managed to stay away from drugs, starting to put his life in order.  
13.	As a result, the judge felt able to reduce the category 1 starting point of three years down to two and a half years before giving the appellant 10 per cent credit in respect of his late guilty plea and arriving at a sentence of 27 months' custody.  In the circumstances, the judge explained, it was not possible to pass a suspended sentence nor, in his assessment, was it appropriate to do so given what he characterised as the breach of trust involved in the burgling of the house of his mother's next door neighbour.  
14.	A number of points are raised on the appellant's behalf.  Firstly, it is suggested that the sentence ought not to have been one of immediate custody.  Secondly, it is suggested that a sentence of 27 months' detention was manifestly excessive in the circumstances; specifically, that the judge was wrong to treat the burglary offence as a category 1 offence.  Thirdly, it is argued that insufficient weight was given to the progress which the appellant had made whilst on bail living away from his family and also in relation to his age and history of suicide attempts. 
15.	We consider that there is merit in the point concerning categorisation of the offence.  We agree in particular that the factors listed in the Burglary Offences Definitive Guideline (2011) indicating greater harm were not present in this case.  The items stolen were not of particular sentimental value to the complainant.  The fact that the cash was in unopened birthday cards does not bring the case, in our assessment, into greater harm territory.  Nor does the fact that the burglary took place over the Christmas period.  There was no ransacking since opening Christmas cards and leaving the envelopes on the floor does not amount to that.  Entry was through an unlocked door.  There was therefore no vandalism.  Nor was there trauma beyond the normal inevitable consequence of intrusion and theft.  
16.	It follows that this was not a category 1 type of case but instead a case which falls within category 2 since it is not in dispute that it involved higher culpability given that it was ultimately accepted by the appellant that he did not commit the burglary on his own but as a member of a group.  
17.	The consequence is that we are clear that the judge approached the matter of sentence on a basis which was not appropriate.  He should not have taken as his starting point a sentence of three years' custody reduced to two and a half years' custody, namely a category 1 starting point reduced to reflect the appellant's personal mitigation, but should instead have taken a 1 year starting point and had regard to the fact that the sentencing range for a category 2 offence is between a high level community order and 2 years' custody.  
18.	Bearing in mind the circumstances of the burglary offence, in particular the fact that it was committed when the appellant was under the influence of drink or drugs and at a time when the appellant was on licence having only recently been released from custody in relation to an offence of battery, we consider that a more appropriate starting point would have been 18 months' custody.  
19.	Taking account of the appellant's personal mitigation, specifically his efforts to live a drug‑free life, which the judge rightly described as commendable and yet which he seems not sufficiently to have reflected in the overall sentence arrived at, together with the other matters addressed in the oral pre‑sentence report, a reduction to something in the region of 14 months would have been appropriate.  
20.	Giving credit for the appellant's late guilty plea in the amount of 10 per cent, we consider that a more appropriate sentence would have been one of 12 months' custody.  
21.	In such circumstances, bearing in mind in particular the efforts to which we have referred, we consider that it would have been appropriate that that sentence was suspended in line with the recommendation which was made by the probation officer in reporting orally to the judge.  
22.	Accordingly, the appeal is allowed.  The sentence will be one of 12 months' custody suspended for 18 months with a rehabilitation activity requirement of 35 days during which the appellant will be intensely supervised and any reference to mental health agencies can be made as appropriate.  
23.	We would add that in the event that this suspended sentence were ever to be activated, in deciding whether to impose the original term or modify that term downwards it would obviously be appropriate under paragraphs 8(2)(b) and 8(3) of Schedule 12 to the Criminal Justice Act 2003 to take account of the time which the appellant has spent in custody in respect of the matter with which this appeal is concerned since sentencing to date.  
24.	We have caused inquiries to be made and understand that in this situation the prison authorities do not automatically deduct time spent as a serving prisoner towards an activated suspended sentence.

SMITH BERNAL WORDWAVE