Nelson, R. v [2013] EWCA Crim 2410

[2013] EWCA Crim 2410Case No 201304473 A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 3 December 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MRS JUSTICE THIRWALL DBE
HIS HONOUR JUDGE LEONARD QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
AARON LEE NELSON
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 7831 8838(Official Shorthand Writers to the Court)
Mr B Walters appeared for Appellant
J U D G M E N T

LORD JUSTICE GROSS:

[1]On 16 August 2013, in the Crown Court at Cardiff before Mr Recorder Britton, the appellant, now aged 24, pleaded guilty to the offence of burglary and was sentenced to 42 months or 3 years and 6 months' imprisonment. He appeals against sentence by leave of the Single Judge.[2]The facts are unhappy. On 13 July 2013, at about 11.45pm, the complainant locked the doors and windows before going to bed, with the exception of a small window in the lounge and two windows upstairs, which were left open for air. She was retired and lived on her own in a three-bedroomed detached house.[3]She got up at 7.45 the following morning and noticed that blinds in the lounge were wide open, whereas they had been left closed. She could see that her drawers had been searched and some papers had been left on her dining table. From a small tobacco tin £200 was missing, as well as 50 euros left in a small money bag, together with her handbag and its contents, which included various cards, and a purse containing £80 to £90 in cash and some house keys. Whoever had entered seemed not to have gone upstairs at all.[4]Fingerprints were recovered from the inside of the lounge window, which matched that of the appellant. He was arrested and denied the offence in interview, but after being charged he changed his position and indicated to the court that he wished to avail himself of the early guilty plea scheme.[5]The effect or impact of this offence on the complainant is understandable and was expressed in her victim personal statement:
"After the burglary occurred I felt very vulnerable. As a result I've invested in a security light and an alarm to deter persons from entering my property. I am very conscious about locking doors and windows. I feel more vulnerable as I live alone and the incident has frightened me."
[6]The appellant has a bad record. Putting it very shortly, he has 24 previous convictions for 48 offences. They include three related offences of burglary, dwelling-house burglaries, 19 thefts, one offence of obtaining property by deception and two of destroying or damaging property.[7]In passing sentence the judge said that everything said by counsel and the content of the pre-sentence report had been taken into consideration. This had been described as a "creeper burglary". It was the defendant's third domestic burglary and the minimum sentence that could be imposed was one of 3 years' imprisonment. His age as well as his early guilty plea was taken into consideration and his sentence reduced accordingly.[8]Only an immediate custodial sentence could be passed on him. The shortest sentence that could be imposed that matched the seriousness of the offence, and took into account the mitigating factors in his case, was a term of 3 and a half years, that is 42 months' imprisonment.[9]The grounds of appeal essentially come down to this: the sentence was manifestly excessive; the judge had taken either too high a starting point or given insufficient credit for the early guilty plea.[10]We remind ourselves of a number of relevant factors in this case. We start with the relevant guideline for burglary, to be found at Archbold 2014 First Supplement, paragraphs K-259 to 270. From that guideline we observe that the starting point is 1 year’s custody with a category range extending from a high-level community order to 2 years' custody. We take the guideline first as, in accordance with previous authority, it is with the guideline that we should start - rather than the minimum sentence provisions.[11]Turning to the applicable minimum sentence provisions, this case, as the judge correctly held, falls within section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 111 in a nutshell provides for a minimum sentence of 3 years for such an offence. Section 111 does not rule out a discount for a guilty ple; however, it puts a cap on the discount in that if the starting point is 3 years, or thereabouts, the discount must be restricted in such a fashion that the total sentence is no less than 80 per cent of 3 years (see Archbold 2014, paragraphs 5-107 and 5-117).[12]We highlight a number of features of this appeal:(1) This was a third domestic burglary;(2) The complainant was a retired woman living on her own;(3) As already underlined, the effect on her was considerable: distress and anxiety as emphasised in her victim personal statement;(4) The appellant has a bad record;(5) This offence was committed while on supervision under licence for a previous offence. We note in passing that his previous offence of burglary attracted a sentence of some 2 and a half years;(6) To the appellant's credit he pleaded guilty early to take advantage of the early guilty plea scheme.[13]Having regard to all these factors, our conclusions may be shortly stated: it was not unjust to pass a minimum sentence, subject of course to the effect of the guilty plea; indeed that was realistically common ground.[14]Turning at once to the guideline, the aggravating features of the case undoubtedly call for a rather higher sentence. To do otherwise would ignore those matters, which we have already underlined, not least that this offence was committed while on supervision under licence and that his previous sentence for a burglary was 2 and a half years. To that of course we add the impact on the victim. We therefore think that a starting point, somewhat higher than that contemplated in the guideline, is amply justifiable, even while taking care to avoid double counting.[15]All that said, there is also a strong public interest in emphasising the advantages of the early guilty plea scheme. Those who enter into that scheme should be entitled to a full one-third deduction for that plea. Real credit is thus available to those who participate in this scheme.[16]Against that background we turn to consider whether there is room for some limited reduction in the sentence passed, based on the judge's starting point being too high and the need to allow the appellant a full one-third discount. We observe that in the light of the view we take as to the relevant starting point, we are not concerned with adjusting the one-third discount to ensure that the total sentence is not less than 80 per cent of 3 years.[17]Upon reflection, and although we thoroughly deplore the offence and not conscious of the impact that such offences have on their victims, some reduction is warranted. On the assumption that the judge must have allowed a full one-third discount, his starting point must have been 5 years and 3 months. That seems to us simply too high, even acknowledging and emphasising that sentencing is not a mechanistic exercise. In our judgment, in all the circumstances, the starting point should have been 4 years and 3 months. If that starting point is reduced by a full one third for the plea, the sentence becomes one of 2 years and 10 months. To such extent, and no further, this appeal is allowed.[18]Mr Walters emphasised that reflected by the appellant's early plea there is an element of contrition in this matter and that is to be welcomed if such there be. At all events, the appellant should be under no illusion that if he continues to commit burglaries the sentences will go up and up. The question for him is how much of his life he wishes to spend in custody.[19]MR WALTERS: I simply say this for the record: the sentence is dated 16 August and not the 16 January. Your Lordship will have been misguided by the summary.

LORD JUSTICE GROSS: It is my fault because you did correct it. I will ask the transcript writer to correct that so it comes out correctly. Thank you very much for your assistance.