Attorney General Reference No 34 of 2003

A sentence for aggravated burglary must reflect the full gravity of a planned, joint attack in the victim’s home. Material features include violence, restraint, threats, the use of a weapon intended to intimidate, theft, and relevant previous offending. The fact that a victim recognises that a firearm is not real may reduce one aspect of fear, but does not neutralise the seriousness of the attack.

On an Attorney General reference, the court may increase an unduly lenient sentence. It should nevertheless allow for the offender’s guilty plea, the double-jeopardy consequences of resentencing, and genuine rehabilitative efforts made in custody.

The offender pleaded guilty at Bristol Crown Court to aggravated burglary after he and an accomplice entered the victim’s home, assaulted and restrained him, used an inoperable pellet gun to intimidate him, and stole money and property. The sentencing judge imposed three years’ imprisonment.

The Attorney General obtained leave under section 36 to refer the sentence as unduly lenient. The central issue was whether that sentence adequately reflected the seriousness of the planned home invasion and, if not, what sentence should be substituted after allowing for the guilty plea, double jeopardy and post-sentence rehabilitation.

1. The court granted leave and allowed the Attorney General’s reference. The three-year sentence was unduly lenient. It was quashed and replaced by a sentence of five years and six months’ imprisonment.

2. The offence was exceptionally serious. It was a planned attack by two men on one victim in his own home, where he was entitled to feel safe. The assailants used liquid sprayed into the victim’s face, a firearm intended to intimidate, repeated violence, restraint, threats and a sustained search for money. The offender’s extensive record, including serious violence, aggravated the offending.

3. The victim’s recognition that the weapon was not a real gun was mitigating only to a limited extent. The weapon was carried to create fear, and the remaining features made the offence grave even though the victim was not elderly or otherwise especially vulnerable. The court treated the comparisons with Funnell and others (1986) 8 Cr App R (S) 143 and Stewart [1996] 2 Cr App R (S) 302 as distinguishable on their facts.

4. The appropriate sentence after a trial would have been about nine years. Giving proper credit for the early guilty plea, the appropriate first-instance sentence was seven years.

5. The court then allowed an 18-month reduction for double jeopardy. It also took account of the offender’s genuine efforts in custody to address the drug addiction linked to his offending. The substituted sentence was therefore five years and six months’ imprisonment.

• Court of Appeal (Criminal Division) Granted leave under section 36 and allowed the Attorney General’s reference, substituting five years and six months’ imprisonment for the original sentence.
• Bristol Crown Court The offender pleaded guilty to aggravated burglary on 11 April 2003 and was sentenced to three years’ imprisonment on 9 May 2003.