Saw & Ors, R v [2009] EWCA Crim 1

[2009] EWCA Crim 1Case No 2008/06058/A6 (1)2008/05468/A4 (2)2008/05601/A6 (3)2008/05627/A1 (4)2008/05958/A7 (5)2008/05001/A4 (6)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE MACHIN (1)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
HIS HONOUR JUDGE HOOTON (2)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE MACHIN (3)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE BEECH (4)
ON APPEAL FROM THE CROW COURT AT DERBY
RECORDER BERLIN (5)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
HIS HONOUR JUDGE TAYLOR (6)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/01/2009
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE LATHAM VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONLORD JUSTICE HUGHES
Between
RCrownRebecca Saw (1),Andrew Tete-Djawu (2), Martin Smith (3), Tadeusz Kassa (4) Naveed Younis (5) Colin McPhee (6)Defendant
Mr G Huston for Saw (1): Mr R Townsend for the RespondentMr A Hendron for Tete-Djawu (2): Mrs M McLean for the RespondentMr C Hart for Smith (3): Mr R Townsend for the RespondentMr S Natas for Kassa (4): Mrs M McLean for the RespondentMr C.A. Hallas for Younis (5): Mr D.M. Outterside for the RespondentMr N Soppit for McPhee (6): Mr D.M. Outterside for the RespondentHearing Hearing dates : 1 st December 2008
Judgment

The Lord Chief Justice of England and Wales:

[1]These cases are concerned with the sentences imposed on adult defendants guilty of burglary of occupied premises, the homes of the victims. The essential feature of each submission was that in the context of the guideline decision in R v McInerney: R v Keating [2003] 2CAR (S) 240, the sentence was excessive. For reasons which follow, each of the five applications is refused and the single appeal is dismissed.[2]R v McInerney: R v Keating was promulgated on 18 December 2002, almost exactly 6 years ago. It replaced the earlier guidance offered in R v Brewster and others [1998] 1 CAR (S) 181. It was heavily influenced by research conducted by the Sentencing Advisory Panel (the Panel), completed in September 2000. Nothing is gained by denying that it was controversial. On 14 January 2003, Lord Woolf CJ on behalf of the court, issued a Statement the purpose of which was “to correct inaccurate comments which are repeatedly being made as to the guidelines. Correction is vital, since, if the inaccuracies stand uncorrected, the public will be left with a totally wrong impression”. The judgment itself was not modified, altered or retracted, but something of the nature of the controversy may be gauged by Lord Woolf’s emphatic observation that “the judgment is not a charter to offenders to commit burglary as has also been suggested. Nor is it a body blow to the efforts of the police to detect offenders who commit burglary”.[3]R v McInerney: R v Keating is not a definitive guideline for the purposes of sections 170 and 172 of the Criminal Justice Act 2003. The Sentencing Guidelines Council has incorporated its effect in a publication of its own, which accurately reflects the effect of its decision. In practical terms the guidance has proved problematic and misunderstandings about its effect still persist. Thus, on 24 October 2008, in R v Wong, the Crown Court at Leicester was considering sentence on a man who had been committed for sentence by Magistrates for two dwelling house burglaries and who asked for two offences to be taken into consideration. Without commenting on the decision itself, which is not before us, we note that the Recorder observed that he wanted “the public to know that I can’t send you to prison because of the guidelines that I am given…I want to send you to prison but I can’t because I am restricted by what I am told to do in cases like this….I have got to give you a community sentence. And as I said earlier the public must think we have all gone mad. But that is what I have got to do”.[4]We would be surprised if on proper analysis the guidance in R v McInerney: R v Keating compelled this observation, but the fact that it was made demonstrates not only that the guidance has been controversial, but that it has also proved difficult of application. We can conveniently outline some of the major difficulties. The starting point in R v McInerney: R v Keating used the expression ‘starting point’ in a sense different from that which has since become conventional. It is nowadays used to identify a notional point within a broad range, from which the sentence should be increased or decreased to allow for aggravating or mitigating features, rather than the lowest point in the range. It was for this reason that the decision may have been understood to suggest that the normal sentence even for a repeat offender should be non-custodial. Furthermore, the concept of the “first time burglar” was itself problematic, not least because what was described as the “standard” burglary assumed that the defendant had already been convicted of burglary on previous occasions. The division of the aggravating features into higher and medium level was also insufficiently flexible in practice, and the omission of potentially aggravating but unspecified features from what appeared to be a comprehensive list meant that, on occasions, the defendant’s true criminality was not fully addressed.[5]For these reasons, pending definitive guidance on the subject of domestic burglary which may be issued by the Sentencing Guidelines Council, we have re-examined R v McInerney: R v Keating and offer this fresh guidance. The Approach[6]The starting point must always – we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. The concept suggests impregnability and defiance against intrusion. In the phrase coined by Sir Edward Coke in 1628, when compiling his Third Institute of the Laws of England, our homes should beour “safest refuge”, where above all we should enjoy secure tranquillity and untroubled peace. Something precious is violated by burglary of a home, and those who perpetrate this crime should be sentenced and punished accordingly.[7]During the last few years dwelling house burglary as recorded by the police has steadily fallen from a peak in the mid 1990s. That is, of course, very welcome. In any event, however, over 280,000 domestic burglaries were still recorded by the police during 2007/2008. In other words, the number of domestic burglaries remains very significant. The most likely targets for dwelling house burglary are those homes where security measures are absent, at least in part, no doubt, because many of these householders simply cannot afford the cost. Some of these homes may not include property or objects of any great financial worth, but for those whose material possessions are limited in number and value, the disappearance of what in a prosperous home would be treated as relatively small items will be correspondingly more significant. In any event the sense of disturbance and distress suffered by the home owner is not quantifiable in bare economic terms. Therefore in the sentencing decision particular focus is required on the impact of the offence on those living in the burgled house. Whether or not the dwelling house burglar has any specific intention to cause harm, he runs the risk that the victim or victims may suffer serious adverse consequences. Where this happens, sentences should be reflective even of unintended consequences.[8]We repeat the observations by Lord Bingham CJ in R v Brewster and others [1998] 1CAR (S) 181, and adopt them as our own. “Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured: because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to know that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the day time to find that it has been burgled.”[9]As Lord Bingham recorded, and like every other offence, the intrinsic seriousness of each burglary offence may vary hugely. The offence is committed by a man of good character who, passing an open window on a summer’s day, puts his hand inside the window and steals a bottle of water. Without trivialising the offence, that smacks more of petty theft than burglary. Such exceptional cases should obviously be treated exceptionally. Thus although burglary has always been regarded as a serious offence, it has also been recognised that while some burglaries are higher level offences of their kind, some remain lower level offences. The task is properly to assess the true seriousness of the individual offence. The Statutory Framework[10]By section 9 (1) of the Theft Act 1968, “A person is guilty of burglary if – (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in sub-section (2); or (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm ” (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in sub-section (2); or (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm ”[11]The offences referred to in sub-section (1)(a) are offences of stealing anything in the building, or inflicting grievous bodily harm on any person in the building, or doing unlawful damage to the building or its contents. The maximum sentence is 14 years’ imprisonment.[12]At the lowest end of the scale, burglary may be tried summarily, in which case the maximum sentence available to magistrates who do not commit for sentence is 6 months’ imprisonment or a fine which does not exceed the statutory maximum, or both.[13]In these appeals the infliction of grievous bodily harm or any sexual crimes during the course of a burglary does not arise. We are not addressing such offences, which will often be charged as offences of robbery, or violence, or indeed rape. Aggravated burglary arises where the burglar has a firearm or imitation firearm with him, or an offensive weapon or any explosive, and robbery, which involved the use or threat of force. Again, we are not addressing any such offences, for which the maximum sentence is life imprisonment.[14]Section 111 of the Powers of Criminal Court (Sentencing) Act 2000 which provided that a minimum custodial period of 3 years must be imposed by the court where an offender aged 18 or over is convicted of a third “domestic burglary” provided all three burglaries were committed after 30 November 1999, and there are no particular circumstances relating to any of the offences or the offender which would make the imposition of a custodial sentence of 3 years’ imprisonment, or longer, unjust. Section 111 of the 2000 Act is a mandatory provision, but it is not engaged where the court is dealing with an offender convicted at the same court appearance of 3 domestic burglaries. Reflecting ordinary and well understood sentencing principles, section 111 also envisages a distinction between offenders aged 18 years and over, and those under 17 years.[15]Section 142 of the Criminal

Justice Act 2003 provides:

“(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing – (a) The punishment of offenders (b) The reduction of crime (including its reduction by deterrence) (c) The reform and rehabilitation of offenders (d) The protection of the public, and (e) The making of reparation by offenders to persons affected by their offences.”
In relation to adult offenders, the Sentencing Guideline Council guideline, Overarching Principles: Seriousness (issued in December 2004) states that “the Act does not indicate that any one purpose should be more important than any other and in practice they may all be relevant to a greater or lesser degree in any individual case – the sentencer has the task of determining the manner in which they apply”. However, section 142 (2) imposes a limitation on the operation of section 142(1) where an offender is aged under 18 at the time of conviction. For such offenders the Crime and Disorder Act 1998 states in section 37 that the principle purpose of the Youth Justice System “is to prevent offending by children and young persons”, and section 44 of the Children and Young Persons Act 1933 imposes a statutory duty on the court to “have regard to the welfare of the child or young person”. offences.”[16]When the court is determining the seriousness of an offence, section 143 (1) of the Act provides:
“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably cause”
. As we have already explained, the harm which might foreseeably have resulted from any burglary includes the risk taken by the burglar that the impact may be very severe.[17]Section 143 (2) adds a further consideration to the court’s determination of the seriousness of any individual burglary. Where it is committed by an offender with previous convictions “the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to –(a) the nature of the offence to which conviction relates and its relevance to the current offence, and(b) the time that has elapsed since the conviction” Section 143 (2) demonstrates that when the seriousness of the instant offence falls to be considered the fact that the offender has previous convictions may be relevant, even if he is a first time burglar. There is plainly a significant difference between a defendant who is a first time offender altogether and one who, although without convictions for dwelling house burglary, has graduated to it from other offences of dishonesty. Moreover, relevant previous convictions may include burglaries of shops, garages and outhouses and, even more significantly, offences which if not quite dwelling house burglary are very close to it, for example, distraction theft from the homes of elderly occupiers. In short, convictions for offences other than dwelling house burglary will often be significant to the sentencing decision. (a) the nature of the offence to which conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction”[18]We note, without reciting, further statutory provisions, relating to offences committed while on bail, and also, reductions in sentence following guilty pleas, all well understood principles of general application.

Aggravating features

[19]Whilst every case is different, the experience of courts is that some aggravating features are commonly encountered in burglary. They include:• Force used on, or threatened against, the victim, and especially if physical injury is caused; such cases will often be charged as robbery or as offences against the person. They fall outside the scope of these present guidelines, but they were addressed in, for example, Attorney General’s References 38-40 of 2007 (Crummack and others) [2007] EWCA Crim 1692, and the cases there reviewed, and in the most serious cases of robbery in the home, by O’Driscoll [1986] 8 CAR(S) 121 and Attorney General’s Reference 60 0f 2008 (Gordon) [2008] EWCA Crim.• Trauma to the victim beyond the normal inevitable consequence of intrusion and theft;• Pre-meditation and professional planning/organisation in the execution; this may be indicated by burglars working in a group or when housebreaking implements are carried;• Vandalism of the premises;• Deliberate targeting of any vulnerable victim (including cases of ‘deception’ or ‘distraction’ of the elderly);• Deliberate targeting of any victim, for example out of spite or upon racial grounds;• The particular vulnerability of the victim, whether targeted as such or not;• The presence of the occupier at home, whether the burglary is by day or by night;• Theft of or damage to property of high economic or sentimental value;• Offence committed on bail or shortly after the imposition of a non-custodial sentence.• Two or more burglaries of homes rather than for a single offence;• The offender’s previous record, as explained in this judgment.[20]An analysis of this list of aggravating features demonstrates that their true importance derives either from the increased impact of the offence on the occupier of the burgled home, or from greater culpability on the part of the defendant when committing it, or from a combination of the two. There may well be an overlap between features. In practice therefore, the distinction previously drawn in R v McInerney: R v Keating between high-level and medium-level aggravating features has often been shown to be artificial. All are aggravating features, and all the aggravating features previously labelled as “high-level” are likely to be treated as serious aggravating features of any dwelling house burglary. However, in our experience, what were described as medium-level aggravating features very frequently have a significant impact on the victim. The question to be answered therefore is where the particular aggravating feature should be placed on the scale, sometimes at the most extreme end of seriousness, sometimes not. In short, compartmentalising aggravating features into high level and medium level is unhelpful, and the appropriate sentence cannot be arrived simply by adding up the aggravating features in some kind of hypothetical, quasi mathematical calculation. The sentencer must focus on the realities.[21]Where goods of slight economic but significant sentimental value are taken or damaged the impact on the victim is likely to be high, not least because these objects are irreplaceable. A photograph is worth nothing, except to the person who owns it, but it may be the only image left of grandparents, or now deceased parents. The loss or destruction of letters written in the early days of courtship may distress the widow or widower who has lost them far more than the disappearance of valuable electrical equipment.[22]The presence of the victim at home in bed at night while the burglary occurs may well occasion especial trauma certainly if woken by the burglar, and even more so if he or she sees, or, worse, is confronted by the burglar. In these circumstances it would be unrealistic to regard the victim’s presence at home during a night-time burglary as merely a medium-level aggravating feature. The same may apply when the householder is at home during the daytime when a forced entry takes place, particularly if the homeowner is someone on his or her own, or someone who by himself or herself is caring for children or the elderly. Such a burglary is likely to cause considerable alarm and distress, and, often perhaps overlooked, while it is taking place, uncertainty about what to do and great fear about what may lie ahead. To all this we would of course add the particular effect on the elderly and infirm, whose last years can be overshadowed by what sometimes becomes an ever present, pervading fear and constant nervousness. Many warm and happy memories of bygone years can be destroyed as a direct consequence of burglary, and for some indeed, their home becomes something of a prison, as they barricade themselves behind the security arrangements they believe they need.[23]The inference of careful planning can usually be drawn where property of high economic value is taken, particularly if it is not recovered, and if the facts lead to the inference that whoever may have burgled the premises knew precisely which receiver or receivers would be willing and able to accept and pay for the stolen property. However, a degree of planning, not necessarily profound or detailed planning, may be demonstrated when burglars work in a group. The carrying and use of house breaking implements will ordinarily dispose of any suggestion that the offence was simply impulsive. Obviously the carrying of any weapon speaks for itself and will often result in a charge of aggravated burglary, which is outside the scope of these guidelines.[24]We emphasise that the culpability of the offender is not diminished merely because it is the common characteristic of many offences of burglary that the offender has previous convictions. To the contrary, we endorse the observations in R v Brewster that “the record of the offender is of more significance in the case of domestic burglary than in the case of some other crime.” Therefore, consistently with section 143(2) of the 2003 Act, even what has previously been described as a “standard” burglary is, and should be treated as, more serious when committed by a defendant with previous convictions for relevant dishonesty than an identical offence committed by a first offender. Moreover, for some repeat offenders, the question of minimum sentence provisions of section 111 of the 2000 Act will apply.[25]Perhaps, however, and finally we should emphasise that no lists can be exhaustive or wholly comprehensive, and indeed that the discussion in the previous paragraphs of the judgment is not intended to be directive. It merely reflects the common experience of sentencing judges, and indicates that what is required in reality is not compartmentalisation, but evaluation. Different cases throw up different features, and sometimes the different features are unusual. Their absence from the list of aggravating features does not mean that they should be disregarded. At the same time, many cases involve more than one of these aggravating features, some at the particularly serious end of what may otherwise be regarded as a single individual feature, on its own indicative of the need for a severe sentence, some not so. In essence, all the various aggravating features require the court to address two specific features which may be present in every dwelling house burglary, first, the overall criminality of the defendant, in the light of his previous convictions, and second, the true impact of the offence on the victims. Mitigation[26]There are, of course, a number of obvious features of commonly encountered mitigation. Again, we attempt no exhaustive list. Good character is substantial mitigation. If nothing, or only property of very low economic or sentimental value, is taken, that obviously reduces the gravity of the offence. The defendant may have played only a minor part in the burglary, and been treated by the other burglars as if he were on the fringes. He may indeed have been exploited by others. He may have committed it on impulse. Evidence of genuine regret and remorse, ready co-operation with the police, positive response to previous sentences and the age and state of health (mental and physical) of the defendant, are all likely to be relevant factors. A guilty plea will always attract reduction in sentence in accordance with existing practice and depending on the stage at which it is tendered. We emphasise that we are not seeking to limit the matters in mitigation; merely highlighting some of the more obvious and common factors.[27]There will therefore be some cases where, depending on the circumstances of the burglary, and the impact on the victim, the right sentence will be non-custodial. For example the sentencing of a first offender, particularly a youthful offender, requires careful attention to the question whether the public interest would be best served by attempting his or her rehabilitation. Another example is the defendant who has reached a critical stage in his life with a real prospect of turning his back on crime, or breaking away from addiction to the drugs which led him into crime. If he is indeed making a genuine attempt to break the cycle, or to address its causes, then that is plainly a factor to be taken into account in his favour, and put into the balance against the aggravating features of the specific case. Successful and early rehabilitation often represents the best long term advantage to the public, and a sentence which has a reasonable prospect of achieving that the offender will be deterred, or discouraged, or taught to avoid crime may well be appropriate where the burglary lacks significant attendant aggravating features. In the context of a young life which is presently being wasted away, a constructive, rehabilitative sentence, which includes a punitive element, may provide a better long term solution for the public, and particularly for other householders, generally than an unconstructive custodial sentence. The judge is not the prisoner of the sentencing tariff, but rather has the difficult task of arriving at the right sentence in the individual case. Whether an individual case is one for which such a course may be appropriate requires careful judgment.[28]Once an offender has been caught and sentenced, and in particular if made subject to a non custodial penalty on the basis that his rehabilitation may be achieved, he must understand that for dwelling house burglars such a chance rarely comes more than once, and then only if the subsequent court is satisfied that the offender has been making genuine efforts to break out of the cycle of offending and re-offending, and that the current lapse is temporary.

Conclusion

[29]Overall, and in the end, the sentence must reflect the offender’s criminality in the context of the particular dwelling house burglary or burglaries he has committed, with appropriate allowances made for all the available mitigation. In expressing ourselves in this way, what we are seeking in this judgment to achieve, is consistency of approach in which the starting point for every court considering dwelling house burglary involves clear recognition of the seriousness of this offence, no more, no less.[30]There will be low level burglaries, with minimal loss and damage, and without raised culpability or impact, which may be dealt with by some form of punishment in the community rather than an immediate custodial penalty. We do not propose to add anything to the current Magistrates’ Court Sentencing Guidelines in relation to dwelling house burglary, save that the aggravating and mitigating features referred to in this judgment should be expressly addressed, both when the court is deciding whether to commit for sentence to the Crown Court, or when deciding the appropriate form of sentence.[31]Any domestic burglary which, however “standard” it may appear to be, reflects any of the aggravating features we have identified should, subject to strong personal mitigation, normally attract a custodial sentence. Cases of limited raised culpability and/or impact should ordinarily involve a custodial sentence, probably in the general rage of 9-18 months. A longer sentence may be indicated by a record of relevant offending or by a significant impact on the victim, or both. A shorter sentence may be indicated by established (not merely asserted) subsidiary role or demonstrated exploitation by other offenders. In such cases a community order may be appropriate if it provides the best prospect of preventing future offending by the defendant.[32]In cases of seriously raised culpability and/or serious impact, the starting point should be a custodial sentence, probably in the general range of 2 years and upwards. For a single offence the range would ordinarily be 18 months – 4 years. Sentences beyond the range may be appropriate where the culpability and/or impact is at an extreme level. Longer sentences may be indicated, for example, by a record of relevant offending or where the hallmarks of professional crime are evident, and shorter ones by established minor role or demonstrated exploitation, but all aggravating and mitigating features must be evaluated. Community orders for this class of case would only begin to arise for consideration in the most extreme and exceptional circumstances.[33]A third conviction for dwelling house burglary, of any kind, is likely now to be subject to a minimum term of 3 years’ imprisonment unless there are special reasons which would make such a sentence unjust. This is not a guideline starting point of 3 years’ imprisonment: it is a minimum sentence, and where the offence is characterised by significant or seriously raised culpability or impact, longer sentences will be appropriate.[34]The general ranges we have set out are appropriate, in conformity with various definitive guidelines published by the Sentencing Guidelines Council, to sentences after trial. Sentences are to be discounted in the usual way for the guilty plea. The present group of applications and appeals provide practical examples illustrating our approach to these situations. In particular we emphasise that we have followed this guidance, and adapted it to the particular features of each individual case. It will be seen on examination that our decisions have been clearly focussed on the appropriate punishment of the offenders for the consequences suffered by their victims.[35]We turn to the individual cases. Saw[36]At about six o’clock in the morning in March 2008, Rebecca Saw and her then boyfriend burgled a house in Boston. Both were heroin addicts. Their object was to steal to feed their addictions. A kitchen window was forced, an internal door wedged and an external one locked in case of interruption, and an untidy search made. The house was the home of a young couple and their baby, who were asleep. They were awakened by a bang from downstairs. The burglars fled, using the couple’s car keys to take their car. A number of other items were also taken, including scan photographs of the baby before birth, which were of importance to the couple and cannot have been of any value to anyone else. The outcome of the burglary for the householders was that they could not stay in their home; the mother was so anxious for her child that she suffered panic attacks if she remained there; she had to take the child to live with her own mother, thus splitting up the couple and leading her mother to take time off work to look after her. She has had to receive counselling since. It may well be that she was somewhat depressed beforehand, but that does not alter the impact of the offence upon her. The man described the effect of the burglary as ‘devastating’. Eventually the couple had to move.[37]The burglars got away and sold the stolen property to buy heroin. The defendant was caught in April as a result of DNA traces left behind on a cigarette stub. Her boyfriend has, we were told, since been charged with other offences, but there is no sufficient evidence to indict him for the present burglary. She was, however, dealt with, and properly, on the basis that she had been with him and that the offence had had much to do with him. After denying the offence in interview, she entered a prompt guilty plea.[38]The defendant was 24. Her father gave evidence before the Judge. Mother left the family when the defendant was ten years old and the defendant had a very troubled childhood. Father had done his best to support her. She was expelled from school for violence and was in trouble with the police in her early teens, but not since, so it was more or less ten years since she had been convicted of any significant offence. She had a baby, born in January 2008. Her father asked for the baby to be taken into care by the Local Authority because the defendant could not look after her. He provided a home for the defendant and, for a while, for the boyfriend. When he insisted that the boyfriend leave, the defendant chose the boyfriend and a life on heroin and for some time the pair of them led an itinerant life, staying with friends or living rough. Her admitted heroin use in this period could not have been financed from the benefits she drew. The burden of the argument on her behalf both in the court below and before us was that she was now anxious to try to resume caring for her child, her boyfriend was in custody as a result of some other offence(s), and thus there could and should be a community order aimed at drug rehabilitation.[39]We agree that in a case of this kind the Judge should look carefully at whether the right sentence is a community order designed to get the defendant off the drugs which are destroying her life and, in the process, putting other people and their property at risk. As we have explained, this will sometimes be the right order. Whether a case is one for that course is a delicate judgment which must be made individually in each instance. This defendant’s ten years or so without conviction were in her favour, and her childhood history attracted some sympathy, as the Judge recognised. But if drug rehabilitation (or, in a different case, support for a chaotic lifestyle or other disability) is to be attempted, the prospects of success need to be better than they were here. True it was that the probation officer pointed to the best hope for the defendant having the necessary motivation to change being whatever chance she had of avoiding a permanent care order for her baby, but that was not to say that sufficient motivation was actually present. The assessment of the defendant was that she appeared, despite involvement with the social Services, NACRO and Addaction, to have made no progress in helping herself out of her destructive lifestyle, and that it may be too late to effect the changes needed to avoid the permanent removal of her child. Despite her father’s offer of a home she had absconded between arrest in April and sentence in October, and in September had been again convicted of the possession of heroin. In those circumstances, the Judge’s conclusion that there was no escape from the sentence he passed cannot be criticised.[40]The Judge passed a sentence of two years imprisonment. After a guilty plea, that would normally have been a severe sentence for this inadequate troubled young woman, but as it seems to us, this sentence was justified by the impact which this burglary had on its victims. There was no direct confrontation, but the sleeping family was disturbed and seriously frightened by intruders in their home during the night, the family unit was for a while disrupted, and in the end the family abandoned its home. The sentence properly reflected this direct consequence of the burglary. Tete-Djawu[41]This defendant lives in London. In the evening of 9 May 2008 he was in Basingstoke. He burgled the home of a lady of 69 who was out at the time. He took a substantial quantity of property, including both television and DVD player, as well as money and jewellery. She came back to find the house ransacked. The value of what was taken was just under £2000. The cost to the lady householder was more. Her spare car keys were taken, so she had to have the immobiliser and locks replaced at a cost of £1000. She lived alone and although she managed to cope with the anxiety which the burglary caused, she felt she needed to replace her windows and doors at a cost of nearly another £3000 in order to feel secure in her home.[42]The defendant was 20 years of age. He had a number of previous convictions from the age of 13 onwards. They included thefts, assaults and the possession of cannabis. Neither a short sentence of detention and training in 2004 nor a community order in 2006 requiring unpaid work, had deterred him from offending. He committed the present burglary about ten days after being arrested for stealing from a shop, possessing two razor blades and having cannabis; thus he was on very recent bail when he burgled this lady’s home.[43]The Judge passed a sentence of two years’ imprisonment, following an early guilty plea. In property terms this was a burglary of some seriousness. The householders’ anxiety to put in place expensive security shows that there was plainly some particular impact on the householder beyond the inevitable. The further aggravating feature of this case is that the defendant had recently been trusted to remain at large on bail and had repaid the trust in days with a more serious offence than before. With that additional factor, we do not consider that the sentence, though severe, was manifestly excessive. Smith[44]On a single night in February 2008 this defendant, with others, set out to break into the homes of the elderly. Two burglaries were committed. Both occupiers were ladies living alone, asleep in their beds. One was 92; the other was 88. The handbags and contents of both ladies were taken. At least one containing a number of credit or bank cards. From one home a television was also removed, and an irreplaceable photograph of members of her family went too. The effect on both ladies was considerable. Both reported that they were often unable to sleep for worry, and were put on edge by every smallest sound. One described herself as ‘petrified’. It seems unlikely that they will ever feel fully secure again in their own homes. The burglars went on a spending spree with one of the stolen credit cards. A total of approximately £9000 was spent. This defendant was not directly concerned with the bulk of that spending, but the break-ins were clearly aimed at handbags and contents, and thus at credit or bank cards, one of which was then grossly misused.[45]This defendant fell to be dealt with on the basis that he had known that the elderly would be targeted, that he had been the lookout, and that he had personally benefited from the use of the credit card to the extent of £100 in cash and a mobile telephone. He asked the court to take into consideration two other offences of drilling people’s petrol tanks to steal the contents.[46]The defendant was 24 years of age. He had a previous conviction for attempted theft from the person and had been cautioned for burglary (not of a house). He had a background of conduct disorder and temper tantrums, but also genuine personal difficulties of substance. He had arrested growth and development which had required medical treatment and had resulted in a history of being bullied; he had been locked in cupboards by other boys at school as well as assaulted. A report from a consultant psychiatrist concluded that he would have real difficulty coping with imprisonment and would be vulnerable to exploitation by others. We were told that the expected difficulties had indeed occurred; he had run away, had gone to his mother, and had been persuaded by her to return.[47]The defendant entered a prompt plea of guilty. He was sentenced to 18 months for the burglaries and three months consecutive for the offences relating to the use of the credit card which had personally benefited him. The Judge made explicit allowance for the personal difficulties of the defendant, but concluded that custody was unavoidable and that notwithstanding the personal mitigation, a total sentence of 21 months was called for. Given the deliberate targeting of extremely elderly victims and the permanent impact upon them, that approach was justified. The extent to which the inevitable custodial sentence could be moderated for the personal difficulties of the defendant and the greater impact that imprisonment would have upon him was a matter of judgment for the sentencing judge. The sentence was within the bracket properly available to him and not arguably manifestly excessive. Kassa[48]This defendant was forty eight years of age. He came to the UK from Poland to work in December 2007. In the afternoon or evening of 22 February 2008, he broke into a flat in Barking. The Judge was told that his work as a scrap metal merchant and associated accommodation had fallen through as a result of a disagreement with others with whom he had worked, and that he was homeless and hungry. When the couple who lived in the flat returned they found a scene of devastation.[49]The defendant cut himself breaking a window to get in and he had bled profusely all over the flat. Food was strewn on the floor and ground into the carpet as well as eaten. Clothes, books and other possessions were also thrown on the floor. A laptop, jewellery and two watches were taken; the lost items included many of sentimental value. It took the occupiers two days to clear up and a great deal had to be thrown away. Whether the damage had been done maliciously or recklessly the impact on them was such that they felt unable to contemplate living any longer in what had until then been their home.[50]There was no information about the history of the defendant in Poland, and he had no convictions in the short time he had been in this country. However, he told the police that he could not remember particular premises and often looked for empty premises in which to sleep because he was homeless. He pleaded guilty; the Judge treated his plea as prompt.[51]The Judge said that after trial the sentence would have been 27 months, but reduced it to 18 months in recognition of the guilty plea. Given the impact on the householders and the fact that the offence was acknowledged to be one of a series of break-ins, this sentence was amply justified. Younis[52]At about 7.30 pm on a May evening in 2007 Younis, with a group of other young men, broke into a house in Derby. It was occupied by a woman, her 17 year old cousin, and her two year old child. They were all watching television when they were disturbed by the noise he made when climbing to the porch roof. The police were called. The householder went to a bedroom window and saw him there. Younis then disappeared, but came back twice more over the next quarter of an hour or so, whilst the occupants were in effect confined to the house, clearly very apprehensive indeed about his forcing his way in and hoping that the police would arrive first. He entered a bedroom and removed a mountain bike which was stored there. Having passed it to others outside, he got in again and would have passed from the bedroom into the rest of the house if the householder had not wedged the door shut. Younis was arrested while still in the bedroom.[53]After hearing him give evidence at a Newton hearing the Recorder found, that the defendant’s assertion that he did not know that there was anyone in the house was, at least by the time of the second entry, false. The lady householder was much affected by the incident. She felt threatened in her own home by local youths, described herself as having become a prisoner in her house. She was anxious to move if possible. She no longer had the sense of security in her home to which she was entitled.[54]Younis was 19. He entered a prompt guilty plea before committal to the Crown Court. He had no previous convictions, albeit a single caution for theft of a cycle. He was of well below average intelligence, probably suggestible, and easily led. It was likely that he had been encouraged in the break in by others outside, to whom he had handed the mountain bike and who had been heard to tell him that he should go back in. He lived with his parents and other family. He was unemployed, as he had been most of the time after leaving school without qualifications. The pre-sentence report invited consideration of a community order with 20 days specified activities for employment/training assessments, a six month curfew and an order not to enter the relevant part of Derby for 12 months.[55]The Recorder passed a sentence of 12 months detention in a Young Offenders’ Institution. The Recorder will not have made the standard reduction for the plea of guilty, because the defendant had forced a short trial of an issue by his false denial that he knew the house was occupied; however, since the evidence of the witnesses was accepted and read, so they did not have to come to court, no doubt the reduction will still have been significant. It is clear that the Recorder reduced the sentence to allow for the defendant’s personal inadequacies, but given the persistence of the defendant and the effect of the burglary on the householder and her family, it is unarguable that 12 months’ imprisonment was manifestly excessive. McPhee[56]At about 12.30 at night in early November 2007 this defendant was walking around a residential area of Middlesbrough looking for opportunities to steal from houses. In due course he asked the court to take into consideration three offences committed immediately before the principal charge. He had stolen property from someone’s garage and attempted to get into two different houses by trying the doors. Some of the householders had been disturbed and at least one had confronted him and spoken to him. The encounter did not deter him, a significant aggravating feature which is not included in the broad range of aggravating features summarised earlier in the judgment, but represents an example of an unlisted truly aggravating feature properly to be taken into account.[57]The defendant rang the bell at the door of a further house, occupied by a gentleman of 89 who had lost his leg and was dependent on a wheelchair and the help of neighbours. He was in bed with the bedside light dimly lit. He operated a remote control to open the door, thinking that it was one of his helpful neighbours. The defendant walked into the man’s bedroom. The man was there to be seen in bed, with his wheelchair beside him. He shouted to the defendant to get out. Instead, the defendant set about rifling through the householder’s belongings. This went on for some minutes while the elderly gentleman struggled to get out of bed and into his wheelchair. When he did, the defendant left. In the end nothing was taken, but not for want of trying. The police had been called by one or more of the other householders and they found and arrested the defendant. Interviewed the following morning, he initially asserted that he could remember nothing, having taken a cocktail of pills, but would not have been intending to steal. Later he made half admissions recalling the man and his wheelchair.[58]It appeared at one time that the defendant’s guilty plea was entered only when the case was listed for trial. That was only partially right. What happened was that the defendant had indicated to counsel in February that he would plead guilty. For some, perhaps perfectly good, reason, there was no plea and case management hearing. The case was listed in April for trial when the defendant would presumably have pleaded guilty. However, instead of appearing and doing so, he absconded. He committed further offences in a different part of the country and remained at large until mid August. After his arrest the case was listed again and he then pleaded guilty. It follows that the defendant was entitled to some reduction for his guilty plea, but as he himself postponed his opportunity to enter his guilty plea at the earliest possible moment, a full discount was inappropriate. After sentence, he was then indicted and sentenced for the further offences committed while he was on the run, and as we understand it, he received a concurrent four year sentence.[59]The defendant was nearly 26. He had led an itinerant life with virtually no schooling and occasional casual employment. He had been a regular user of heroin for several years and was taking either that, or methadone, or both, at the time of the offence. He had been married and had two children, but his wife had given up attempts to take him back. He had significant previous convictions. On three different occasions in 2005 he cheated elderly householders in their mid or late seventies by promising to do gardening work but disappearing once he had their money. For those offences he went to prison for 15 months. In November 2006 he was sent back to prison for 18 months for two offences of theft. They were of like kind. He visited the homes of elderly people on a pretext and stole from the house while the occupier was distracted. The offences must have been committed not long after release from the previous sentence. Then in October 2007 he was convicted of a further theft from a house. The magistrates were persuaded to order a conditional discharge. That generous sentence came about a month before the defendant committed the offences for which the present sentence was passed. So the defendant had ignored that chance, committed the present offences, and then absconded, despite being caught, to commit more.[60]The Judge took the view that this was all too commonplace an offence, here committed by a man who preyed on the elderly, and that it must be stamped out. He passed a sentence of 5 years.[61]If this sentence had assumed a full discount for a guilty plea, it would have been of a kind normally appropriate to burglary where there is not only confrontation but also the threat or use of some direct force against the householder. However a full discount for plea was not appropriate here. In any event this was a most serious burglary. The impact on the disabled elderly housebound occupier was considerable. It was committed by a man with a clear track record for preying on the elderly and vulnerable. We observe that technically he could be described as a ‘first time burglar’, but that description should not mask the reality that his previous offences involved the exploitation of the old and/or intrusions into their homes. We are told, and accept, that although this house was equipped with an alarm by which a warden could be called, it was an ordinary suburban residence rather than purpose-built, and obvious, sheltered housing. It was therefore not established that the defendant had deliberately targeted this unusually vulnerable householder, and he had indeed tried other houses which were not, as we understand it, occupied by vulnerable persons. However, this burglary was committed in the face of efforts by some residents to get the defendant away from the locality and in any event, once the defendant was in the bedroom, with the occupant lying in the bed with his wheelchair alongside, the latter’s weakness was as plain as it could be. The defendant had the effrontery to continue his thieving in full sight of a brave elderly man trying to overcome his disability and struggling to get on level terms with the intruder. That would be bad enough whoever the householder was. As it was, the defendant took advantage of the man’s immobility to see if he could find anything to help himself to. All this was in the middle of the night. If the defendant was adversely affected through a mixture of diazepam, zopiclone, methadone and/or heroin, as he later asserted, that only made the experience the worse for the occupier. About the only thing that can be said for the defendant about the offence is that in the end he left without physically touching the householder, or uttering any oral threat.[62]We entirely agree with the Judge that the time had come for this defendant to be receiving a condign sentence. Shorter terms of imprisonment had failed to deter him from preying on householders, especially the elderly. His last court appearance had been only a few weeks beforehand, when he was given a significant opportunity, which he ignored.[63]In the present case we recognise that no force was used and no direct threat uttered. Nevertheless the defendant had a significant history of relevant and recent offending. Even if the further offences he committed whilst on the run should be left out of account, since we know nothing about them, the judge was entitled to pass a condign sentence, beyond the usual range, because of the persistence of this defendant’s repeated offending against vulnerable victims. This particular offence would have emphasised for its victim quite how vulnerable he really was, and would always remain a profoundly alarming shadow over his life. We pose the simple question: what emotions will this victim experience every time a helpful neighbour rings his door bell in order to offer help and assistance? The answer is obvious. He will never forget the occasion when he was helpless while a burglar rummaged around his bedroom. The sentence was intended to protect the vulnerable from this predatory offender. We acknowledge that the sentence was severe, but it was not manifestly excessive. Conclusion[64]For these reasons the applications of Saw, Tete-Djawu, Smith, Kassa and Younis are refused, and the appeal of McPhee is dismissed.

Cited in 9 later judgments