Fountain, R v [2017] EWCA Crim 967

Case No 201605661/A4[2017] EWCA 967 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 27 June 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE McCOMBE
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE ZEIDMAN QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
NATHAN STEPHEN FOUNTAIN
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms D Mundill (Solicitor Advocate) appeared for AppellantThe Crown was not present and was unrepresented
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 1st November 2016 in the Crown Court at Cambridge this appellant pleaded guilty to two offences of burglary and theft in dwellings. He asked for a further 21 house burglaries to be taken into consideration. Those offences comprised 18 offences of burglary and theft and three of either burglary with intent or attempted burglary. On 4th November 2016 he was sentenced to a total of 7 years' imprisonment. He now appeals against that sentence by leave of the single judge.[2]The facts in brief summary were these. Count 1 on the indictment related to a burglary on the morning of 14th September 2016. The resident was not at home. The appellant forced entry through a patio door, searched through all the rooms and took a number of items valued at some £360. None of the stolen property was recovered.[3]Five days later, on 19th September, he committed the offence charged in count 2. Again, that was a daytime burglary of a house which was not occupied at the time. Entry was forced in a similar way. The bedrooms were searched and on this occasion property with a high financial and sentimental value was stolen. Jewellery was taken, valued at nearly £14,000. One of the stolen items was a medallion which the householder's grandfather had worn throughout the First World War. In addition, a camera was taken with its accompanying memory card on which the daughter of the household had stored all the photographs which she had taken whilst recently working for the good of the community in India.[4]The appellant was identified because he had left drops of blood at the scene of the burglaries. He was arrested early in October 2016. He admitted both offences. He also volunteered admissions of the other 21 offences, the majority of which had been committed during the period of August to October 2016.[5]The appellant, now aged 38, has a bad criminal record. He has been sentenced by courts on 15 occasions, for a total of 29 offences, many of which involved dishonesty. He had previous convictions for offences of burglary. The most recent such conviction was in March 2010, when he was sentenced to 3 years' imprisonment for an offence of burglary and theft in a dwelling with 10 offences taken into consideration. Since his release from that sentence he had served a further custodial sentence of 8 weeks, imposed in March 2013, for possessing an article for use in fraud.[6]These latest offences brought the appellant within the provisions of section 11 of the Powers of Criminal Courts (Sentencing) Act 2000. Where an offender is convicted of a third or subsequent dwelling-house burglary, that section requires the court to impose a sentence of at least 3 years' custody, unless the court is of the opinion that there are circumstances which make it unjust to do so. Further, by section 144(2) of the Criminal Justice Act 2003 a guilty plea to such an offence cannot serve to reduce the sentence below the level of 80% of the mandatory minimum 3 years' term.[7]It is accepted here that there were no exceptional circumstances which would make it unjust to apply the provisions of section 111. It is however submitted on the appellant's behalf by Ms Mundill, in her most comprehensive and helpful written grounds of appeal, that the sentence was manifestly excessive in length.[8]It was clear that these offences had been committed, as no doubt previous offences had been committed, in order to fund the appellant's long-standing drug habit. Sadly, it appears that a short-lived period of being drug free had been followed by a relapse and the commission of these offences.[9]The submissions Ms Mundill made in mitigation on the appellant's behalf emphasised that he had made full admissions when he was arrested and had co-operated very fully with the police in identifying the other premises where he had committed offences. The court was provided with a letter from a police inspector which indicated that at least some of the admitted offences would not have been proved against the appellant but for his admissions. The letter also indicated that in assisting the police to identify the houses which he had burgled the appellant appeared to be reflecting on how his criminal activities had impacted on the victims of the offences.[10]No pre-sentence report was regarded as necessary by the judge in the Crown Court and we are satisfied that none is necessary at this stage.[11]In his sentencing remarks the learned judge rightly emphasised the distress, anxiety and feelings of violation which the appellant had caused to the victims of his many offences. He observed, and we agree, that the bald statements of the monetary value of property stolen, "... do not in any way do justice to the distress that you have caused." He concluded that the time that had passed when a sentencer could consider imposing a sentence aimed at helping the appellant with his drug addiction, saying:
"This sentence must reflect the gravity of what you have done and the protection of others."
No complaint is or could be made about that conclusion.[12]The judge referred to the Sentencing Council's Definitive Guideline in relation to burglary offences. He accepted submissions that the offence charged in count 1 was a Category 2 offence, for which the guideline indicates a starting point of 1 year's custody and a range of up to 2 years and that the offence charged in count 2 was a category 1 offence, for which the guideline indicates a starting point of 3 years' custody and a range of 2 to 6 years. The judge did not specifically refer to the other guideline which was relevant to this case, namely the Sentencing Council's Definitive Guideline on offences taken into consideration and totality. It sets out the approach to be taken when an offender asks for offences to be taken into consideration and indicates that the commission of those further offences will generally be treated by the court as an aggravating factor, justifying an upwards adjustment from the guideline starting point, and in some cases, as justifying a move outside the category range.

The judge observed:

"The only real credit here is credit for a guilty plea..."
He then expressed his conclusions in the following terms:
"It is submitted count 1 is category 2 and count 2 category 1, plainly aggravated by your prior convictions. My starting point, in that context, count 1, 3 years and count 2, 5 years consecutive, making a total of 8. Uplifting that to reflect the TICs, of which there were many - you have cut a swathe through the lives of people in this city and caused a great deal of distress and pain - uplifting that to 10 years, therefore, and giving full discount for your pleas: count 1, 3 years and count 2, 4 years consecutive."
[14]Ms Mundill submits that that total sentence of 7 years was manifestly excessive in all the circumstances. She points out that the judge gave only 30% credit for the guilty pleas, when the appellant was properly entitled to a full one-third reduction. She submits insufficient regard was paid to the mitigation which could be urged on the appellant's behalf and to the principle of totality. She reminded the court of the line of case law to the effect that when sentencing a third strike burglar, the court should not simply treat the statutory minimum term of 3 years in custody as the starting point: rather, the court should go through the conventional sentencing exercise in accordance with the Sentencing Guideline and should then crosscheck to ensure that the proposed sentence is not less than the minimum required by statute.[15]With respect to the judge, it would have been helpful if he had set out his approach to the sentencing exercise in rather more detail than he did. He did not make clear whether he attached any weight to the mitigating factor of the appellant's frank admissions and assistance to the police and to his victims in accepting responsibility for the many offences taken into consideration.[16]This was, on any view, a serious case. But that was in our view a significant mitigating factor to be considered as part of the balancing of aggravating and mitigating features.[17]Moreover, whilst consecutive sentences were not wrong in principle in this case, it seems to this court that it would have been more convenient for the judge to have imposed concurrent sentences of equal length reflecting the overall gravity of the admitted offending.[18]In that way he would have avoided the criticism made by Ms Mundill, in our view with justification, that the judge appeared to increase the sentence on one count by 2 years above the guideline starting point, because of the aggravating factor of previous convictions, and then increase the consecutive sentence on the other count by a further 2 years because of the same aggravating feature.[19]These were, as we have said, serious offences. They were greatly aggravated by the previous convictions. The number of offences to be taken into consideration and the seriousness of those offences was a further substantial aggravating feature. As Ms Mundill sensibly accepts, a lengthy total sentence of imprisonment was inevitable. We are however persuaded that the total sentence of 7 years, after giving credit for the guilty pleas, did not attach sufficient weight to the mitigating feature which we have mentioned or to the principle of totality.[20]Reflecting on the aggravating and mitigating features of this offending, the just and proportionate total sentence after trial would, in our judgment, have been one of 8 years' imprisonment. That total falls to be reduced by one-third, because of the prompt guilty pleas entered by the appellant.[21]For those reasons, we allow this appeal and we quash the sentences imposed below. Adopting the approach which we have indicated, we substitute for those sentences concurrent terms of 5 years 4 months' imprisonment on each of counts 1 and 2. We record that 21 offences have again been taken into consideration. Thus the appellant's total sentence is reduced from 7 years to 5 years 4 months' imprisonment.