Whittles, R v [2009] EWCA Crim 580

Case No 200805983/A8[2009] EWCA Crim 580
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 6th March 2009
Strand
London, WC2A 2LL
B e f o r e:
MRS JUSTICE RAFFERTY DBE
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrownv
Between
JASON WHITTLES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss R Stephens appeared for Appellant
J U D G M E N T
[1]MRS JUSTICE SWIFT: On 1st October 2008, at Sheffield Crown Court the appellant, who is 33 years old, pleaded guilty to an offence of domestic burglary. On 24th October 2008, before His Honour Judge Goldsack QC, he was sentenced to 4 years and 8 months' imprisonment. Five further offences of domestic burglary were taken into consideration. He appeals against sentence by leave of the single judge.[2]At about 11 o'clock on the morning of 11th August 2006, a householder was in the front room of his home when he heard noises. He went into the living room to investigate and found the appellant standing by a window. He challenged the appellant, who became agitated and claimed (obviously falsely) that somebody was chasing him. He invited the householder to search him and he did so. He found nothing. He then ushered the appellant out of the house through the front door. As soon as he had done so he contacted the police.[3]The appellant's fingerprints were found at the scene and, on 10th September 2008, he was arrested for the offence. When interviewed, he accepted entering the property with intent to steal. He also volunteered that he had committed five other burglaries in which it was subsequently estimated that a total of about £1750 worth of property had been stolen and £400 worth of damage caused. They were all daytime burglaries. Sometimes he had stolen property by putting his hand through an open window or entering through an open door. On one occasion he had forced a door to gain entry.[4]The appellant had nine convictions for 21 offences, including eight domestic burglaries, one attempted burglary, (also domestic) and one robbery. His most recent offence was a burglary of the distraction type, for which he received a sentence of 5 years' imprisonment in March 2006. He was released from that sentence on licence on 11th April 2008, having served half his sentence. He obtained accommodation with a probation-funded organisation and was undertaking a drug treatment programme. However, he soon returned to using drugs and, in early August 1998, a decision was taken to terminate his licence and recall him to prison. It is now clear that, by that time, he had had begun to commit further domestic burglaries. Between 14th July and 18th August 2008 he committed six such burglaries. Meanwhile he had left his accommodation to avoid being returned to prison. He was not apprehended by the police until he handed himself in on 2nd September 2008. Shortly afterwards he was arrested for the offence charged on the indictment.[5]A pre-sentence report was available to the sentencing judge. That revealed that most of the appellant's offending was related to the financing of his long-standing drug habit. During his time in prison in recent years he had undergone various courses in an attempt to tackle his drug addiction but, despite good intentions on his release and even with a high level of support, he was unable to cope in the community without using drugs. The author of the report assessed him as having a high risk of re-offending in the future and recognised the inevitability of a custodial sentence.[6]A letter from the appellant to the court indicated that he believed that his return to drug use was in large part due to the fact that, on his release, he had been re-housed in poor quality accommodation shared with other drug users. He expressed remorse for the householder whose privacy he had invaded and asked for leniency.[7]In sentencing the appellant the judge observed that he had a bad criminal record. He referred to the fact that, at the time of the burglaries, he had been released on licence from his previous prison sentence, which still had over 2 years to run. He expressed his regret at the fact that, under the sentencing regime introduced by the Criminal Justice Act 2003, it was not possible for a judge to order the sentence for the most recent offence or offences to run consecutive to the termination of the previous licence period. He observed that, in the case of repeat dwelling-house burglaries, this meant that the sentence resulted from no additional time spent in custody. He concluded by observing:
"... Courts regularly say that long sentences are designed for the protection of the public and that immediately falls down if people are released at or before the halfway point and then cannot receive a considerably longer sentence for the next serious series of offences."
The judge went on to say that the appellant's previous record of dwelling-house burglaries and the fact that he was being sentenced for a further six such burglaries were aggravating factors. A further aggravating factor was the fact that the appellant had over 2 years of his licence left when he committed the offences. He indicated that the appropriate sentence, after a trial, would have been 7 years' imprisonment. Giving appropriate credit for the appellant's guilty plea, the sentence would be 4 years and 8 months' imprisonment.[8]For the appellant Miss Stephens submits that the starting point adopted by the judge was manifestly excessive. The offence on the indictment had few aggravating features. Although the householder was present, the appellant did not threaten him or use violence. The offence was committed in the daytime and nothing was stolen, no damage was done and the offence was unsophisticated and opportunistic. The other offences were similarly lacking in aggravating features. Miss Stephens argues that the judge placed undue significance on the appellant's previous convictions. She submits that the judge gave inadequate credit for his early admissions and guilty plea and for the fact that he had volunteered information about the burglaries that were taken into consideration. She suggests also that inadequate weight was given to the efforts which the appellant had made to rid himself of his drug addiction and the circumstances in which he had relapsed into drug abuse. She suggests that the judge artificially inflated the starting point in order to achieve the result that the appellant would be required to serve at least some additional time in custody over and above the remaining licence period for the previous offence. She argues that the starting point of 7 years was not commensurate with the seriousness of the offence for which he was being sentenced or the offences taken into consideration.[9]In referring to the changes made by the 2003 Act, the judge had in mind the provisions of section 265 which prohibit a court from imposing a sentence to run consecutively to an earlier sentence in respect of which the offender has been released on a licence which has subsequently been revoked. The 2003 Act also removed the power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to order an offender (in respect of offences committed after 4th April 2005) to return to prison to serve the appropriate proportion of the earlier sentence. The effect of these changes is that, where an offence or offences is or are committed at a time when there is a substantial proportion of a licence period relating to a previous offence still to run, the court sentencing for that offence or those offences may in effect be powerless to impose any additional period of custody to reflect the later criminality. The sentencing judge in this case indicated that this problem was arising with increasing frequency at the court centre in Sheffield and no doubt at other large court centres also. It is likely to present increasing difficulties as the courts come to deal with offences committed during the currency of longer licence periods imposed for post-4th April 2005 offences.[10]The problem created by the new regime has been evident for some time: see, for example, the discussion by Dr David Thomas QC at Crim LR [2007] 811 in which he observed:
"The (ie section 265 of the 2003 Act) appears to have no logical basis and effectively undermines the basic concept of early release under the 2003 Act."
He expressed the hope that Parliament would take the opportunity afforded by the passing of the (then imminent) Criminal Justice and Immigration Act to repeal section 265. In the event this was not done. Thus the problem remains.[11]It is well established that it is wrong in principle for a judge to impose a sentence which would otherwise be disproportionate to the most recent offence or offences merely so as to ensure that the offender serves a period in custody over and above the remainder of the licence period imposed for a previous offence. Such a course would be contrary to the provisions of section 153 of the 2003 Act which provides that, subject to certain specified exceptions, a custodial term must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it. It was expressly disapproved in R v Drewett [2007] Cr App R(S) 169.[12]The question is therefore whether the judge's starting point (and thus the sentence actually imposed was) as Miss Stephens contends, disproportionate. The relevant guidelines for sentencing in cases of domestic burglary are those set out in the recent case of R v Saw & Ors [2009] EWCA Crim 1. At paragraph 19 of his judgment, Lord Judge LCJ identified certain aggravating features commonly encountered in cases of burglary. It is not necessary to list them all. Those relevant to this case are (in the case of the offence on the indictment) the presence of the occupier in the house, the fact that there were six separate burglaries and the fact that the offences were committed very shortly after the appellant's release from prison on licence for a similar type of offence. Last and importantly, there was the appellant's previous record of offences of this kind upon which the sentencing judge was fully entitled to place considerable weight.

(S) that:

"... the record of the offender is of more significance in the case of domestic burglary than in the case of some other crimes."
[13]The mitigating factors were the appellant's co-operation with the police, which extended to volunteering information about the offences that were taken into consideration, his early guilty plea, the fact that the offences were unsophisticated and opportunistic, the difficulties he had faced on his release from prison and his apparent remorse.[14]We have considerable sympathy with the sentencing judge who was attempting to impose an effective sentence which properly reflected the appellant's actions in committing six further burglaries. We have no doubt that, in view of the appellant's previous record of similar offences, a substantial custodial sentence was merited. This was particularly so in view of the fact that he had committed the most recent offences within a short term of his release from prison when his licence period had over 2 years to run. Nevertheless, in our judgment, the judge's starting point of 7 years' imprisonment after a trial was too high, influenced as it appears to have been by his concerns that, if the sentence was not of that magnitude, the appellant would not be required to serve any part of it. We consider that an appropriate starting point would have been 5 years. Having given appropriate credit for the early guilty plea, this would result in a sentence of 3 years and 4 months (ie 40 months') imprisonment. We quash the sentence of 4 years, 8 months' imprisonment and substitute a sentence of 3 years, 4 months' imprisonment. To that extent the appeal is allowed.

Cited in 1 later judgment