Sparkes, R v [2011] EWCA Crim 880

No: 201005564 A3[2011] EWCA Crim 880
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15th March 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE KEITH
MRS JUSTICE THIRLWALL DBE
Between
R E G I N ACrownv
Between
KEVIN DAVID SPARKES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7422 6138(Official Shorthand Writers to the Court)
Mr M Lowe appeared for Appellant
J U D G M E N T
[1]MR JUSTICE KEITH: On 28th September 2010 at Northampton Crown Court, the appellant was sentenced by Judge Wide QC to three years' imprisonment for two offences of burglary and three years' imprisonment for two offences of theft. He had pleaded guilty to all four charges. All the sentences were ordered to run concurrently with each other, but consecutive to sentences totalling five years' imprisonment which he was currently serving and which had been passed by the same judge, also at Northampton Crown Court, on 14th June 2010. He now appeals against the sentences imposed on him on 28th September 2010 with the leave of the single judge.[2]The offences for which the appellant had been sentenced on 14th June 2010 related to two domestic burglaries which the appellant had committed with another man exactly a year earlier on 14th June 2009. Both the burglaries had been committed at night. One of them related to an isolated farmhouse which was occupied at the time. Car keys were stolen. The keys were used to remove an expensive high-performance car from the driveway at the farm. The second burglary related to a house which was also occupied. This time a handbag was stolen from the kitchen. The appellant and his co-defendant were chased by the police in the car they took in what the judge described as colossal speeds, including going through one village which had a 30 mile an hour speed limit at something approaching 90 miles an hour. That had resulted in the appellant and his co-defendant being charged with aggravated vehicle taking as well. The judge took six years' imprisonment as his starting point for the totality of the appellant's offending that night, but sentenced him to five years' imprisonment in all to reflect his, albeit late, pleas of guilty.[3]The four offences which the appellant was sentenced for on 28th September 2010 had been committed while he had been on bail for the June 2009 offences. The burglaries were night-time domestic burglaries of homes which were occupied at the time by couples and their children, and the thefts related again to expensive high-performance cars which the appellant stole with keys he had taken from the premises. The first burglary was committed on 11th April 2010. Although the appellant was seen by the householder, there was no confrontation between them. The second burglary was committed on 5th May 2010. This time the appellant had driven off before the householder saw him. Both of the cars were recovered, and victim impact statements said that both families were still frightened and their sleep was affected. It is said on the appellant's behalf that the intrusion into the victims' homes was minimal. It was not as if vulnerable victims had been targetted or items of sentimental value taken, or as if untidy searching, ransacking or gratuitous vandalism had taken place. All that is true, but these were nevertheless serious offences.[4]The judge gave the appellant credit for his pleas of guilty, but he noted that the appellant had initially spurned the opportunity to plead guilty to these offences when he was sentenced for the offences committed in June 2009, and that he had waited instead to see whether there was forensic evidence by which the prosecution could prove his involvement in the April and May 2010 offences. He only pleaded guilty on the day his case was due to be listed for an adjourned plea and case management hearing and following Judge Wide's refusal to give a Goodyear indication in his case.[5]The appellant is 28 years old. He has a number of previous convictions, including convictions for domestic burglaries. In October 2003 he was made the subject of a curfew order for a domestic burglary. In November 2006 he was sentenced to 20 months' imprisonment for another one. And then, of course, there were the two domestic burglaries for which he was sentenced to five years' imprisonment in June 2010. Plainly, a substantial sentence of imprisonment was called for, and at first blush it had to be for at least three years in the light of the mandatory minimum sentence for a third domestic burglary required by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, unless there were particular circumstances relating to any of the offences or the appellant which made it unjust to pass the minimum sentence. Indeed, sentences totalling three years' imprisonment are not criticised, nor could they. The only ground of appeal relates to totality as a result of the judge ordering that the sentences of three years' imprisonment should be served consecutively to the five years' imprisonment the appellant was serving for the June 2009 offences.[6]In Watts [2000] 1 Cr App R (S) 460, it was said at page 463 that "although it may be proper to make a sentence consecutive to one passed on an earlier occasion, particularly where the second offence has been committed while on bail for the first offence, the court must nevertheless have regard to the totality of the sentence going to be served. If the offence had fallen to be dealt with at the same time would the same total sentence have resulted?" It is perfectly true that the appellant could have avoided being sentenced on two separate occasions had he pleaded guilty to these offences when he was sentenced for the June 2009 offences, but the fact that he chose not to plead guilty then should be reflected in the limited discount which he should be given for his late pleas of guilty, rather than denying him the opportunity to have his offending considered on the basis of totality. Bearing in mind the judge's starting point of six years' imprisonment for the June 2009 offences, and the late pleas of guilty for the current offences, making the three years' imprisonment consecutive to the sentences for the June 2009 offences means that the judge must have taken a notional starting point in the region of nine and a half years' imprisonment for all the appellant's offending. We think that that was too long, and that it should have been of the order of eight years' imprisonment. Giving the appellant an appropriate discount for the late pleas of guilty in both sets of cases, we think that the overall sentences should have totalled six and a half years' imprisonment.[7]But how does that fit in with the complicating factor of section 111? Unquestionably the sentences had to be consecutive. Yet if the minimum sentence was imposed consecutively, the totality principle would be breached. The answer lies in the court's power not to impose the minimum sentence where the particular circumstances relating to the offences or the offender make it unjust to pass the minimum sentence, taking into account the appellant's pleas of guilty which the judge was entitled to give effect to pursuant to section 144(2) of the Criminal Justice Act 2003. That enables the court to give effect to totality and to the appellant's pleas of guilty. That is what was said in Raza [2010] 1 Cr App R (S) 56, in which the headnote, which accurately reflects what the court said, reads:
"Where an offender is convicted of a number of offences, one of which is subject to a mandatory minimum sentence, the principle of totality applies and requires the sentencing judge to consider whether the aggregate of consecutive sentences produces a total term which is disproportionate to the overall criminality of the offender's conduct, but the principle of totality should be applied in such a way that it does not undermine the will of Parliament by substantially reducing an otherwise appropriate consecutive sentence for another offence so as to render nugatory the effect of the mandatory minimum sentence."
[8]In our judgment, since the principle of totality required the appellant to be sentenced to a total of six and a half years' imprisonment for his overall offending, it was unjust in these circumstances for the appellant to have been sentenced to consecutive terms of three years' imprisonment for the 2010 offences. We do not think that the will of Parliament will have been undermined if we substitute for the sentences of three years' imprisonment imposed by the judge for the 2010 offences sentences of 18 months' imprisonment, to be served concurrently with each other but consecutive to the sentences totalling five years' imprisonment imposed on 14th June 2010. To that extent this appeal is allowed.

Cited in 1 later judgment