Brinkley, R v [2013] EWCA Crim 760

Case No 201300084 A7[2013] EWCA Crim 760
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 19th April 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE ANDREW SMITH
MR JUSTICE JEREMY BAKER
Between
R E G I N ACrownv
Between
ERNIE CHARLES BRINKLEY
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)
Miss J Hitchcock appeared for Applicant
J U D G M E N T
[1]MR JUSTICE JEREMY BAKER: Ernie Charles Brinkley is 32 years of age. On 21st December 2012 he appeared before Mr Recorder Kainth, sitting at Chelmsford Crown Court, having previously pleaded guilty to an offence of burglary of a dwelling house contrary to section 9(1)(b) of the Theft Act 1968. He was sentenced to a term of 40 months' custody. This is the renewed oral application for leave to appeal against that sentence after refusal by the single judge.[2]So far as the circumstances of the offence are concerned, on the afternoon of 10th October 2012 the applicant entered his ex-stepmother's home in Harlow while she was out. He opened the drawers in her bedroom and stole jewellery and cash therefrom to the value of about £300. He was disturbed at the property by a next door neighbour, to whom he sought to give an innocent explanation. He then left the property. The neighbour contacted the owner, who in turn reported the matter to the police.[3]The applicant was arrested by the police later the same day. He provided an explanation in a prepared statement to the effect that whilst acknowledging having visited the property, he denied ever having entered it or stolen from it. It is right to note that none of the stolen property was recovered.[4]So far as the applicant's antecedents are concerned, he has a very extensive history of offending ranging from 1998 to date. In particular, he has the following appearances. In 2002 he appeared for an offence of dwelling house burglary and received four months' custody. In 2003, for ten offences of dwelling house burglary, he received 60 months' custody, some 70 other offences were taken into consideration. In 2006, for attempted robbery, he received 32 months' custody. Finally, in 2009 for nine offences of dwelling house burglary, five years' imprisonment was imposed, and there were some 35 other offences taken into consideration.[5]In his sentencing remarks the Recorder recognised the applicant was a "third strike burglar" and was thus subject to the minimum sentencing provisions of section 11 of the Powers of Criminal Courts (Sentencing) Act 2000. He also acknowledged the existence of the relevant sentencing guidelines in respect of offences of domestic burglary, stating:
"If this was a stand alone burglary, not taking into account your previous convictions, it would probably come within category three and category two or thereabouts. But the law does allow me when it would be contrary to the interests of justice [not] to follow the guidelines. I take the view that the guidelines do not assist as far as you are concerned with respect to my sentencing, because the sentence which I would have to impose would be contrary to the interests of justice."
The Recorder pointed out that the most significant aggravating feature of the case was his previous convictions. He stated he gave the applicant credit for his guilty plea.[6]In the original grounds of appeal there were three points which were made, points 1 and 2 being, firstly, the Recorder erred in departing from the sentencing guidelines and, secondly, that the Recorder failed to give sufficient reasons for departing from the guidelines. Miss Hitchcock, who did not appear below nor settle those grounds but does appear before us today, has very properly abandoned those two grounds. However, she seeks to pursue the third ground, namely that the sentence overall which was imposed was manifestly excessive.[7]It is apparent that under section 125(1) of the Coroners and Justice Act 2009 a court must, in sentencing an offender, follow any sentencing guidelines which are relevant in the offender's case unless the court is satisfied that it would be contrary to the interests of justice to do so. However, it is equally clear, as various constitutions of this court have pointed out on repeated occasions, that the sentencing guidelines issued by the Sentencing Council and its predecessor are neither rigid nor hermetically sealed; rather, they provide guidance which permits significant flexibility in appropriate cases to take into account both mitigating and aggravating features.[8]In that regard we do take the view that in this particular case it was not necessary for the Recorder to seek to, as he said, depart from these guidelines: there was sufficient flexibility within the system of the guidelines to take into account within the appropriate category all relevant mitigating and aggravating factors.[9]This particular applicant was subject to the minimum sentencing provisions and therefore in any event, subject to appropriate discount for plea, he was subject to the minimum term of three years. The real nub of the complaint identified by Miss Hitchcock is this: in imposing 40 months' custody, the starting point after a trial, which the Recorder had implicitly identified, was one of five years.[10]So far as the circumstances of this offence are concerned, whilst undoubtedly an extremely mean offence involving the applicant's ex-stepmother, there were no particular features which indicated necessarily greater harm or higher culpability. Thus, on the face of it, this was a category 3 offence. Undoubtedly, there was here an extremely potent aggravating factor, namely the very extensive history of offender by this applicant for the very self same type of offences. However, in our judgment that by itself, in the particular circumstances of this case, did not justify an increase in what was effectively a category 3 type offence into the imposition after a trial of what would have been a five year sentence of custody. Therefore, we consider that it would be appropriate in this particular case effectively to impose the sentence which is based on the minimum sentencing provision under the 2000 Act and to quash the sentence of 40 months' custody and to impose in its stead, after taking appropriate account of the plea, a sentence of two years and five months. In those circumstances we grant the renewed application for leave to appeal and we also grant the appeal to the extent that we have indicated.

LORD JUSTICE DAVIS: Miss Hitchcock, we should make clear that you should get a representation order in light of the fact that you succeeded.

[12]May we also say that when considering this matter on the papers, we had been disinclined to allow this application, but it was your advocacy that won the day, so your client should be grateful to you.