R v Kyle McMullen [2025] EWCA Crim 1112

[2025] EWCA Crim 1112Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 July 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BENNATHANHIS HONOUR JUDGE CONRAD(Sitting as a Judge of the CACD)
Between
REXCrownKYLE McMULLENDefendantREXKYLE McMULLEN
REFERENCE BY THE ATTORNEY GENERAL UNDER s.36 CRIMINAL JUSTICE ACT 1988
Mr P McGhee appeared for Solicitor GeneralMr L Edwards appeared for Offender
Approved Judgment
[1]His Majesty's Solicitor General applies for leave to refer a sentence which she regards as unduly lenient. It is common ground that the sentence passed by HHJ Reid was unconventional. The questions for this court are whether it was unduly lenient and, if so, whether this court should intervene. The Facts[2]On 31 December 2022, the offender, who is a recidivist, with a long history of offences of dishonesty and a particular propensity for dwelling-house burglaries, broke into a flat in London SE16 while the occupants were out. In the flat he conducted what is euphemistically called an "untidy" search and stole a number of items having a total value in excess of £3,000. No victim impact statements were made. The offender was arrested on 17 February 2023 but refused to be interviewed. The Offender[3]The offender, who was aged 34 at the time, and is 36 now, has a terrible record of previous convictions. He has 34 previous convictions for 92 offences. These offences date from 2003, when he was aged 14 years, to 2024, when he was aged 35 years. They include driving offences, including dangerous driving, weapons offences, possession of controlled drugs (cannabis and cocaine), assaults including a number of assaults on constables and one offence of wounding/inflicting grievous bodily harm, failures to comply with requirements of court orders, breaches of court orders, including breach of a conditional discharge, failures to surrender, disorderly behaviour, dishonesty offences including dwelling burglaries and robberies. A number of his past offences were committed while on bail. He received his first custodial sentence, which was a detention and training order, in 2016. His offending until 2014 was dealt with in the Magistrates' Courts. He has been sentenced to a number of terms of imprisonment.[4]The offender is a "third striker" for the purposes of section 314 of the Sentencing Code. On 19 August 2016, he was convicted in the Crown Court at Inner London of burglary of a dwelling, contrary to section 9(1)(b) of the Theft Act 1968 committed on 2 February 2016. He was sentenced to a term of imprisonment of 45 months. On 11 March 2019, he was convicted in the Crown Court at Inner London of burglary of a dwelling, again contrary to section 9(1)(b) of the Theft Act 1968 committed on 24 August 2018, ie after the offender was convicted of the other domestic burglary. He was sentenced to a term of imprisonment of 3 years.[5]On 5 June 2024, the offender was sentenced in the Crown Court at Woolwich for a number of offences. Under indictment T20217317, there were various offences of dangerous driving, driving whilst disqualified, possession of cocaine and criminal damage, all committed on 18 October 2021. We need say no more about those offences. Under indictment U202204054, for one offence of dwelling-house burglary, committed on 16 November 2022, the offender was arrested on suspicion of this offence on 17 February 2023. He pleaded guilty to this offence at the PTPH on 17 May 2024 and was duly sentenced to 3 years’ imprisonment. Under indictment U20240455, for five offences of dwelling-house burglary, committed between 21 October 2023 and 11 March 2024, having been arrested on 12 March 2024, he pleaded guilty to those offences at the PTPH on 17 May 2024. In respect of each of those he was sentenced to 6 years' imprisonment concurrent.[6]The offender had evidently committed a series of dwelling burglaries, all in the southeast of London. He typically broke into the dwellings via a window and invariably carried out an untidy search. He stole small portable items of value such as cash, jewellery and electronics. The offence that he committed New Year's Eve, with which we are directly concerned, was entirely typical of the manner in which he committed these offences.[7]The burglary offences for which he was sentenced on 5 June 2024 were all offences that fell within category 1B, high harm and medium culpability. The starting point for each offence under the guideline was therefore 2 years, with a category range from 1 to 4 years. The sentencing judge said that, but for his plea of guilty, the sentence on the single offence under the indictment ending 0454 would have been 4 years and the sentences on the other burglaries would have been 8 years concurrent. Allowing 25 per cent for his pleas of guilty led to the imposed sentences of 3 years for the single offence and 6 years concurrent for the others.[8]The sentencing judge correctly recognised that the offender was then a three-striker because of the convictions in 2016 and 2019. It will immediately be appreciated that the offence with which we are directly concerned was committed after the single offence that was committed on 16 November 2022 and before the five that were committed between October 2023 and March 2024.[9]The effect of his being a three-striker has been recognised by all concerned at all material times. The court must impose an appropriate custodial sentence for a term of at least 3 years unless the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the offender and justify not doing so. A reduction may be made to reflect a plea of guilty and the reduction can reduce the sentence passed the minimum sentence provided that the sentence imposed is not less than 80 per cent of the appropriate custodial period of 3 years' imprisonment ie 876 days. The Proceedings[10]The offender having been arrested in February 2023, the forensic report that linked him to the burglary was available on 31 March 2023. The offender was not charged by postal requisition until 11 March 2025. The offender was arraigned at the PTPH in the Crown Court on 7 May 2025 and pleaded guilty. It is common ground that he was entitled to a 25 per cent reduction for that plea. He was then serving the sentence imposed on him on 5 June 2024.[11]A widely shared comment on the CCDS file from HHJ Newbery on 7 May 2025 stated:
"PTPH burglary on 31/12/22, DNA D's blood at premises. Comprehensive sentencing last June 2024. Def PG and I have indicated a CD is most I will impose in the circs. Sentence 19/5/25 to allow for VIS to be uploaded. CVP/PVL reserved."
Sentencing was then adjourned.[12]It appears that HHJ Newbery made that comment on the understanding that the offender's early release date was 3 June 2025. We are now told that it is in fact 31 January 2026, although in our judgment that makes no difference to this Reference. So it was that the case came before HHJ Reid on 19 May 2025.

The Sentencing Hearing

[13]In the course of submissions the judge referred to the present offence being committed "relatively approximate in time" to the offences for which he had been sentenced in June 2024. The judge recognised that the course proposed by HHJ Newbury was "wildly unusual" and checked with the prosecution, who correctly confirmed that a conditional discharge was a disposal that was open to him if he was satisfied that section 314 exceptional circumstances were present.[14]It was effectively common ground that this offence too fell within category 1B. The prosecution told the judge that there was "no real justifiable reason" for the delay between the receipt of the SFR report in early 2023 and the date of the charging of the offender some 2 years later. It was said that there had been exchanges of an incomplete file between the police and the CPS "which added to the delay".[15]In the light of the indications that have been given no substantive submissions were made in mitigation. In the course of submissions

the judge said:

"... it seems to me, given that he must be on licence for more than three years, a conditional discharge for three years is actually the appropriate way to deal with this because then if he does commit further offences it is not just a recall, which may be a 28 day recall for him, given the change that has been announced by probation, he can also get re-sentenced for this and get a number of years imprisonment, so that is what is worth, part of the situation he finds himself in."
[16]The judge in sentencing the offender referred to his "terrible" record and categorised this as being a category 1B offence. He referred to the sentence that would have been appropriate after a trial, making a clear reference to section 314. He then said:
"... but it seems to me that would be wholly unjust to do so because you have been expecting to be released relatively shortly and if it were not for these proceedings having now been taken, you would not have to concern yourself with that. You were interviewed back at the start of 2023. You, of course, did not assist the police. In fact, quite the opposite in that interview but the matter was submitted for charge to the CPS in December 2023 and there is no possible reason that could be put forward or has been put forward as to why it took so long, so I have got the situation we are in now. You spent a long time in prison. I am sure that Mr Edwards [who was his counsel] would be able to set out in more detail than he started to, the positive efforts you have taken whilst in prison to try and ensure that you do not go back to prison. In any event, when you are released, you will be liable to recall to prison if you do not co-operate with the terms of your licence or if you commit further offences, so what should I do with you? Give you a further prison sentence, which I have to cut down drastically it seems to me, to take account of the fact of the six year and three-month sentence or alternatively, take a different course, that which was outlined by Judge Newbury on the last occasion. It seems to me that in circumstances of this case, there are exceptional circumstances not to apply the mandatory minimum but actually, it is expedient to impose punishment upon you today and I emphasise today the reason I will come onto. It seems to me the appropriate way to dispose of this case is a conditional discharge for a period of three years, it is the maximum period allowed."
The judge then explained the consequences that would follow if the offender were to reoffend during the period of discharge.

The Solicitor General's submissions

[17]The Solicitor General submits that the sentence imposed by the judge was unduly lenient, and that he should have passed a custodial sentence of significant length having due regard to the sentence imposed in June 2024 that the offender was already serving. It is submitted that the sentence imposed by the judge was outside the appropriate category range for a 1B offence and indeed outside the range for the least serious dwelling burglary covered by the guideline and hence outside the guideline altogether.

The Offender's Submissions

[18]The offender submits in writing that the sentence imposed was one that it was within the judge's discretion to impose, and that the reasons for imposing it were sound. While at first blush imposing a conditional discharge on a recidivist burglar seems unusual, it was justifiable and not to be regarded as lenient. Rather it is an alternative sentence as contemplated by the guideline.

Discussion and Resolution

[19]The Solicitor General accepts that the judge's categorisation of the present offence and his treatment of the offender's previous convictions as a statutory aggravating factor was correct. So too was his statement of the principles to be applied where section 314 is in play. Furthermore, the Solicitor General expressly accepts that there were exceptional circumstances.[20]Paragraph 53 of the Reference states that:
"The imposition of the minimum term for the index offence would mean the offender spending a longer period in custody from the date of sentence in May 2025 than otherwise would be the case, had the offender been sentenced for the index offence in June 2024. As such, to impose the minimum term would lead to a longer custodial sentence than could properly be justified. The minimum term would, in those circumstances, result in a sentence which was not proportionate to the offending. The determination by the judge that there were 'exceptional circumstances' in this case - based on that analysis - was thus an appropriate and justified one for him to make."
That being so, the Solicitor General accepts that it was open to the judge to make an order for a conditional discharge (see paragraph 62 of the Reference). The Solicitor General also accepts that (a) it was a matter for the judge's discretion whether to make an adjustment on the basis of delay and (b) the judge was entitled to treat the delay in this case as unreasonable and to take it into account when sentencing the offender. 21. The impact of the delay is obvious. Paragraph 57 of the Reference states:
"Had the index offence been charged without the unreasonable delay, the offender could, and very likely would – had he admitted it as he went on to do at the PTPH in May 2025 - have been sentenced for the index offence at the same time as the other offences in the series. He pleaded guilty to all offences at the same stage of proceedings (i.e. at PTPH). All 7 offences were also subject to the same maximum – and minimum – sentence. The impact, if any, on the total overall sentence imposed in June 2024 of the index offence would, for all of the reasons referred to above, likely have been minimal, i.e. the index offence could also have attracted a concurrent sentence of 6 years’ imprisonment."
[22]Because the Solicitor General accepts that the offences were all very similar and were evidently part of the same series, the Solicitor General recognises that:
"An appropriate approach to take in these circumstances would be to calculate the term the court would impose if it had dealt with the offences at the same time, make a reduction to reflect the sentence imposed previously… and then impose (without being formulaic) any remaining amount." (see paragraph 59 of the Reference) At paragraph 61 of the Reference the Solicitor General also accepts that: "
The remark by HHJ Reid that any further prison sentence for the index offence would have to be 'cut down' was thus undoubtedly justified and correct." Later, at paragraph 73 of the Reference, the Solicitor General submits:
"As the offender was then still serving the custodial element of the previous sentence, the judge could properly have ordered the new sentence to be served either concurrent with or consecutive to the previous sentence, taking into account the circumstances set out in the Totality guideline, and the general principles in that guideline."
[23]In our judgment, if the present offence had been sentenced at the same time as the other burglary sentenced in June 2024, the overall outcome of that sentencing exercise would have been unchanged or possibly and at worst for the offender, subject to an entirely minimal upward adjustment. It may also be noted that the Solicitor General has not identified any material feature that can be shown to have been left out of account or any inappropriate future that has been brought into account by the sentencing judge.[24]In these circumstances, where it is accepted not merely that the judge had a discretion to make a conditional discharge and that (at paragraph 73 of the Reference), if he had resorted to a sentence of imprisonment not merely could he have cut it down but could have ordered the new sentence to be served either consecutively to or concurrently with the June 2024 sentence, we are unable to see any merit in this proposed Reference. If instead of fixing attention solely on the custodial sentence implied by the guideline, one looks to find a coherence in what the judge was trying to do, this sentence is reasonable and well within the scope of the judge's discretionary sentencing powers. Instead of superimposing another sentence of imprisonment upon that already imposed in June 2024 to no obvious advantage, this was a realistic and intelligent attempt to give the court additional scope for sentencing the offender if he reoffended over and above that which would have been implicit in a proportionate further custodial sentence of any duration concurrent or consecutive. We therefore refuse leave.