Saw & Ors, R v

Sentencing for domestic burglary must begin with recognition that the offence violates both property and the occupier’s security in the home. The sentence must reflect the offender’s culpability, the actual or foreseeable impact on victims, relevant previous offending and all mitigation.

Aggravating features must be evaluated in their real context. They should not be compartmentalised or mechanically added together. Low-level cases may justify a community sentence, particularly where rehabilitation offers a genuine prospect of preventing further offending. Domestic burglary with aggravating features will normally require custody, subject to strong personal mitigation. The court gave general custodial ranges while preserving the duty to sentence each case individually.

Six adult defendants challenged sentences imposed for burglaries of occupied homes. Five sought leave to appeal against sentence and one appealed with leave.

Each submission relied on the earlier guideline decision in R v McInerney : R v Keating [2003] 2CAR (S) 240 and contended that the sentence was excessive. The cases involved varying degrees of intrusion, victim vulnerability, distress, previous offending, drug addiction and personal mitigation.

The Court of Appeal reconsidered the earlier guideline and issued fresh guidance pending definitive domestic-burglary guidance. It then applied that guidance to each individual sentence.

1. The five applications for leave to appeal were refused and McPhee’s appeal was dismissed. None of the challenged sentences was manifestly excessive when assessed by reference to the seriousness of the particular burglary, its impact on the occupier, the offender’s culpability, relevant antecedents and available mitigation.

2. Domestic burglary is an offence against both property and the person. A home invasion may cause serious and lasting distress even where there is little financial loss or no physical confrontation. The sentencer must therefore assess foreseeable as well as actual harm under Criminal Justice Act 2003, section 143(1).

3. The court re-examined R v McInerney : R v Keating [2003] 2CAR (S) 240. Its use of a starting point, its treatment of a first-time burglar, and its division between high- and medium-level aggravating features had proved difficult in practice. The court substituted an evaluative approach. Aggravating features are neither exhaustive nor mechanically cumulative; their significance depends principally on culpability and victim impact. The court adopted the observations in R v Brewster and others [1998] 1 CAR (S) 181 about the seriousness of intrusion into a home.

4. Low-level domestic burglaries, with minimal loss or damage and no raised culpability or impact, may be dealt with in the community. Where culpability or impact is limitedly raised, custody will ordinarily be appropriate, generally in the range of nine to 18 months after trial. Where either is seriously raised, the ordinary range for a single offence is 18 months to four years, with a starting point of two years and upwards. Sentences outside those ranges may be justified by extreme culpability or impact, relevant offending, professional features, minor role, exploitation or other mitigation.

5. A community order may be suitable where rehabilitation has a genuine prospect of preventing future offending, especially for a first or youthful offender. It is not justified merely because rehabilitation is desirable. A third domestic-burglary conviction engages the statutory minimum of three years’ imprisonment unless the statutory injustice exception applies.

• Court of Appeal (Criminal Division): five applications for leave to appeal against sentence were refused and one sentence appeal was dismissed in [2009] EWCA Crim 1.
• Crown Court: sentences for domestic burglary had been imposed at Lincoln, Winchester, Snaresbrook, Derby and Teesside Crown Courts.