Collier, R v [2009] EWCA Crim 160

Case No 200805322/A5

[2009] EWCA Crim 160

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 20th January 2009

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE MOSES

MRS JUSTICE DOBBS DBE

MR JUSTICE GRIFFITH WILLIAMS

Between

R E G I N ACrown

Between

MARTIN GRAHAM COLLIER

Computer Aided Transcript of the Stenograph Notes of

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Mr S Smith (Solicitor-Advocate) appeared for Appellant

J U D G M E N T

[1]MRS JUSTICE DOBBS: On 19th May 2008 in the St Albans Crown Court, this 42-year-old appellant pleaded guilty to three counts of burglary and was sentenced to 7 years' imprisonment on each count to run concurrently. He appeals against sentence by leave of the single judge.

[2]The facts underlying these convictions are as follows. Miss Yagcioglu owned a flat in St Albans and she lived there with a friend, Miss Read. Miss Yagcioglu had been out on the night of 11th January with her boyfriend. They returned to the flat just after midnight. She noticed that the front fan light of the bedroom window was open, and on entering the flat, she noticed a beer bottle on the kitchen worktop, another beer bottle on the bedside table. She found that all her possessions had been rifled. Items in the lounge had been moved and nearly every drawer and cupboard in the bedroom had been searched. In particular, a photograph of herself at her graduation had been defaced and a penis had been drawn on it pointing towards her mouth. She also saw that somebody had been in her bed and had left a considerable amount of mud. Condoms had been taken from a private box of her valuables together with credit cards. Some days later, she found a condom which had been opened under her bed.

[3]She told her flatmate what had happened. It turned out that the flatmate had been in the flat in her room watching a DVD throughout the time of the burglary. The flatmate assumed that the noise she heard was that of her flatmate and partner returning to the premises. The police were called. The appellant's fingerprints were found at the point of entry of the fan light window.

[4]Distressed by what had happened, Miss Yagcioglu and her boyfriend went out the following night. Miss Read also went out that night and did not return. However, Miss Yagcioglu and her boyfriend did return to the property just after midnight. They saw that the same fan light had been interfered with and realised that the flat had been burgled again and that somebody was still inside. Miss Yagcioglu's boyfriend and a male friend chased the appellant but he made good his escape through the back kitchen door. On investigation, it transpired that the appellant had gone to Miss Read's room and had gone through her underwear drawers which had been rearranged. Numerous other items in the room had been moved. However, items of value had not been taken. Again, the appellant's fingerprints were found at the point of entry and on a CD case belonging to Miss Read.

[5]The third burglary took place on 26th January, some two weeks later, when the appellant burgled the house of Mary Cook in St Albans. About 4.30 am Miss Cook's boyfriend woke her saying that there was an intruder. He got up making a noise, confronted the appellant, who made off through the front door. The couple made a cursory check of the house and decided that, as apparently nothing was missing and the intruder had gone, they would not report the matter to the police at that time. However, the next morning, Miss Cook found a knife with a 4-inch blade lying on her daughter's bed. The daughter mercifully was away at the time. The knife had been taken from the kitchen. A search of the daughter's room revealed that it had been searched and items moved. A number of items downstairs had been stolen, including a handbag and a mobile telephone. A pack of cider had been moved and one of the cans was missing. An empty can was found in the kitchen. Later, Miss Cook's boyfriend discovered that a condom had been taken from his wallet and he found the condom wrapper on the floor.

[6]The appellant, it appears, had gained entry to the premises through a central panel of the conservatory. He was linked to the premises by his DNA on the can of drink, his shoe mark left at the point of entry and also a torch which had been used. Subsequent investigations revealed that the appellant had used the stolen mobile phone to ring a number of chat lines, some £30 worth of credit being used up. Also there were digital pictures found on the phone of the appellant's penis, his room and a photograph of the inside of the address of the premises which he had burgled. It appears that the appellant had stolen the mobile phone earlier, returned to his home address where the obscene photographs and telephone calls were made and then returned back to that address some time before 3.00 am, where he remained until he was disturbed.

[7]Dealing with the appellant's antecedents, he has 17 previous appearances for some 69 offences, including 19 offences of burglary. No offences for burglary have been recorded since 1994. There were three reports in front of the sentencing judge: a pre-sentence, psychological and psychiatric reports, the findings of which can be summarised as follows:(a) the appellant denied that his offending was sexually motivated and blamed drink and drugs;

(b) all experts agreed that he presented a high risk of offending in the future;

(d) although he was not presently mentally ill such as to require detention under the Mental Health Act, he had a significant number of personality and anti-social behaviour traits consistent with a high level of psychopathy. These traits increased the risk of him committing offences which were thrill-seeking in nature, dangerous, violent and where no concern was shown for the victims. The sexual element of the offences was significant and should not be dismissed when considering sentence;

(e) Community based packages could not adequately manage the risk that he posed. Sentence

[8]The judge in sentencing noted that the motivation for these offences was very troubling. The effect on the victims had been profound and no doubt would be long lasting. Whilst he accepted that the appellant was a lonely and struggling man, under the influence of alcohol and cocaine, he rejected the appellant's assertion that the offences were not sexually motivated. He found, that because the offences were so unusual, no help could be derived from the authorities which gave guidance on conventional burglaries. He noted, that although there had been no previous sexual offending and also there had been a fall off in offending in recent years, the appellant's record was still a serious aggravating factor. Credit was given for the pleas of guilty, although not full credit, due to the overwhelming evidence in the case. The judge noted that had the burglary been a specified offence, that the dangerousness provisions would have applied and an indeterminate sentence considered. As it was, the sentence had to be a determinate one, but protection of the public was the foremost consideration in this case, given the assessment that the risk of harm was potentially very great, as was the risk of further offending. The Grounds

[9]Relying on the following factors the grounds as originally pleaded are that the sentence of 7 years is manifestly excessive because(a) the statutory maximum for a domestic burglary is 14 years and it is not a specified offence;

(b) sentences of this level are consistent with the offence of aggravated burglary, where the maximum is one of life imprisonment;

(c) the starting point under McInerney & Keating for a standard burglary, with a high level of aggravating features after trial, for an offender with two or more convictions is four-and-a-half years;

(d) although it is accepted that there was a sexual element to the offences and that they were night-time burglaries with the occupiers being present, there was no threat or use of weapons. Save for where identified, there were no other high level aggravating features.

[10]With regard to mitigation, reliance was placed on the following: the appellant did not confront the occupiers when challenged; he pleaded guilty; he had shown remorse; the offences were impulsive; little or no damage was caused and little or nothing of value was stolen; the gap in offending in his record and at the time, he was suffering from depression and abusing alcohol and drugs. It is submitted that the judge failed to give sufficient weight to mitigation and gave too much weight to the aggravating features.

[11]As the judge correctly noted, this case is an unusual one on its facts and there is little by way of authority to assist. Counsel has drawn the court's attention to a number of cases, including the case of R v Lunkov

[2008] EWCA Crim 1525

. In that case, the appellant pleaded guilty to two domestic burglaries, aggravated burglary and sexual assault. On three occasions over a period of less than four weeks the appellant entered the flats of three single women. In the first, the victim awoke to find the appellant at the bottom of her bed. She switched on the light and he fled taking £160. In the second, the victim awoke and the appellant hit her with a wine bottle occasioning injury requiring hospital treatment. In the third, the victim awoke to find the appellant standing over her. He hit her, put a knife to her throat and bound and sexually assaulted her and left taking £250. The appellant was of good character and pleaded guilty at an early stage. The sentencing judge passed an indeterminate sentence, but indicated that her starting point was one of 15 years. The Court of Appeal held that an appropriate starting point after trial in a case like that was one of 12 years. The case is more serious on the facts, but it does serve to give some context to the facts in this appeal.

[12]In the present case, the sentencing judge did not indicate the starting point. He did not give full credit for the pleas in light of the overwhelming evidence. It is to be assumed that he had in mind a sentence in the region of 9 years after trial. Counsel relied on the case of McInerney. Whilst it is correct that regard needs to be had to any guideline cases, there are occasions when the facts of a case are such that they do not fall neatly into the guideline cases. More importantly, however, it has been noted in the recent judgment of the Court of Appeal, presided over by the Lord Chief Justice together with Latham LJ and Hughes LJ, that McInerney is not a Definitive Guideline for the purposes of sections 170 and 172 of the Criminal Justice Act 2003 (R v Saw & Ors

[2009] EWCA Crim 1

). The sentencing judge in this case was correct therefore to find that the authorities were of little assistance. Counsel properly concedes that the case of Saw casts a different light on this case and his submissions. The facts in the case of Saw need not detain us, but there are a number of principles which can be drawn from it. The judgment highlights the problems in McInerney and seeks to offer fresh guidance pending a Definitive Guideline from the Sentencing Guidelines Council. The judgment emphasises the seriousness of domestic burglary and the understandable fear and distress caused to victims of such offences. At paragraph 6 the Lord Chief Justice said:

"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."

Emphasis is placed on the impact and broader effects on victims of domestic burglary and the need for protection of the vulnerable:

"Whether or not the ... 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."

[13]A more comprehensive list of aggravating and mitigating features has been set out. In paragraph 20, it is noted that the distinction previously drawn in McInerney between high level and medium level aggravating features have often been shown to be artificial. This is particularly so in the case before us.

[14]Turning to the facts of the instant case, counsel places particular reliance on the mitigating factors, namely that the appellant pleaded guilty at an early stage although he accepts that it was not inappropriate for full credit not to be given in the light of the overwhelming nature of the evidence, but points to the fact that considerable anguish for the victims has been saved, first of all, in relation to certainty but also of course in relation to not having to go through the ordeal of giving evidence in the case. Secondly, that there has been some considerable time since his last conviction for burglary. Thirdly, importantly, comparing the cases on aggravating burglary, that no weapons were used or threatened during the offence and also the general mitigation. However, as we know, this appellant is a man with many previous convictions for burglary, despite their age. He has committed three domestic burglaries, committed at night, committed when the occupiers were present or could reasonably have been expected to be present. Two of the offences were committed against the same occupiers on consecutive nights, clearly targeting young women. That the occupants should have suffered once, only to be targeted again on the following day, is something which undermines the submission that the offences were impulsive and not premeditated. This is also a very significant aggravating feature when considering the impact of being a victim to the same predator on two consecutive days. Moreover further suffering has been caused to these victims, not only by the number but also the type of offence, namely the sexual elements of the offences on both occasions. The first offence was characterised by the appellant's despicable act of defacing a photograph of one of the victims with a depiction of a penis pointing towards her mouth, a distressing and humiliating scene for the victim to face. Not content with those two burglaries, having been caught out in the second burglary, two weeks later the appellant was doing the same thing. Not only were the occupiers' personal possessions gone through, but a similar sexual element can be discerned. Moreover a knife was taken from the kitchen and found in the daughter's room. Additionally there are the unappetising photographs taken on the stolen mobile phone which, mercifully, the victims were spared seeing, but would have been aware of. No one hearing a recital of these events can be in any doubt that these were the actions of a dangerous man, a conclusion confirmed in the reports before the sentencing judge. The judge's problem was that he had no power to impose an indeterminate sentence. There is no doubt that one was appropriate had the power been available.

[15]The impact of these offences on the victims is almost unquantifiable but it is without doubt, serious and long-standing as the judge found. He was correct in identifying that the public needed protection against the appellant and that a long sentence was merited. Even taking into account the mitigation, he was right to take that view.

[16]We have come to the conclusion in all the circumstances, that the sentence of 7 years, although very severe cannot be characterised as manifestly excessive. It follows therefore that this appeal against sentence is refused.