Myers, R. v

For serious distraction burglaries, sentencing must reflect the current guidance for dwelling-house burglary and the individual aggravating features. Persistent offending, professional planning and the deliberate targeting of elderly householders may justify sentences above the ordinary range. However, a sentence at the level normally associated with confrontation involving direct force against a householder is excessive where that feature is absent. Applying Saw and Others [2009] EWCA Crim. 1, concurrent eight-year sentences for two such burglaries were reduced to concurrent sentences of six and a half years.

The applicant was convicted at St Albans Crown Court of two domestic burglaries committed with an accomplice by using a false water-leak explanation to gain entry to the homes of elderly occupants. On the second occasion, £700 was stolen from a 94-year-old woman.

He had a substantial record for burglary, including distraction burglaries, and was sentenced after trial to eight years’ imprisonment on each count, concurrently. He renewed an application for leave to appeal against sentence after refusal by the single judge.

The central issue was whether the concurrent eight-year sentences were manifestly excessive despite the targeting of vulnerable victims, the planned nature of the offending and the applicant’s relevant record, where there had been no violence or threat of violence.

Appeal allowed. The court granted leave and held that concurrent sentences of eight years’ imprisonment were manifestly excessive.

1. The applicable guidance was that in Saw and Others [2009] EWCA Crim. 1. A serious dwelling-house burglary involving raised culpability and serious impact may require custody of two years or more. A single offence will ordinarily attract a sentence between 18 months and four years. Exceptional culpability or impact, relevant persistent offending and professional hallmarks may justify a longer sentence.
2. The offending was seriously aggravated. The applicant and his accomplice were organised and determined. They deliberately targeted elderly and vulnerable people in their homes. The applicant had repeatedly committed dwelling-house burglaries, including distraction burglaries, and previous custodial sentences had not deterred him. He was also properly denied credit for a guilty plea.
3. Nevertheless, the court applied the guidance derived from the discussion of McPhee. A sentence of about seven and a half years after trial would normally be appropriate only where a domestic burglary involved both confrontation and direct force against the householder. Neither burglary involved violence or a threat of violence. That absence made the eight-year sentences excessive, notwithstanding the other aggravating features.
4. The sentences of eight years were quashed and replaced with concurrent sentences of six and a half years’ imprisonment. The direction under Criminal Justice Act 2003 section 240, allowing 208 days spent on remand to count towards sentence, remained unchanged.

• Court of Appeal (Criminal Division) — granted leave following refusal by the single judge, allowed the sentence appeal, quashed the concurrent eight-year sentences and substituted concurrent sentences of six and a half years: [2009] EWCA Crim 119.
• Crown Court at St Albans — convicted the applicant of two domestic burglaries and imposed concurrent sentences of eight years’ imprisonment, with a direction under section 240 of the Criminal Justice Act 2003.