Attorney-General's Reference No 12 of 2009

In sentencing for aggravated burglary, substantial personal mitigation, a guilty plea and an absence of intent to cause grievous bodily harm do not outweigh grave aggravating features. A planned night-time entry into a dwelling, armed with a knife, following threats, and the infliction of serious physical and psychological harm on occupants make the offence exceptionally serious.

Where the sentence fails sufficiently to reflect those features, it is unduly lenient. On an Attorney General’s reference, the Court of Appeal should quash it and substitute a sentence that properly reflects the seriousness of the offending and the suffering of the victims.

The offender pleaded guilty to aggravated burglary after entering his estranged wife’s flat at night with a copied key and a kitchen knife. His wife and her partner suffered serious hand injuries and lasting psychological harm when they tried to escape.

His Honour Judge Clarke imposed two years’ imprisonment. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The offender relied on his guilty plea, exemplary character, remorse, lack of previous convictions and the accepted basis that he had not intended to cause grievous bodily harm.

The central issue was whether those mitigating matters could justify the two-year sentence despite the planned, armed and night-time nature of the aggravated burglary and its consequences for the victims.

1. The reference was allowed. The court held that the two-year sentence was unduly lenient. It granted leave for the reference, quashed that sentence and substituted four years’ imprisonment.

2. The offence involved major aggravating features. The offender had made threats before the incident, secretly copied a key, armed himself with a large kitchen knife and entered the victims’ home during the night while they were asleep. He then persisted with the knife after they had suffered serious injuries while protecting themselves and escaping.

3. The court accepted the mitigating matters. The offender had pleaded guilty, had previously been of exemplary character, was remorseful, and did not intend to inflict grievous bodily harm or any particular injury. Those matters did not, however, adequately address the seriousness of the planned attack, the abuse of trust, or the severe physical and psychological harm caused to both victims.

4. Earlier sentencing decisions were of some assistance but none was directly comparable. The court agreed that aggravated burglary of this kind would rarely attract less than four years’ imprisonment. On these facts, even after full credit for the plea and substantial mitigation, the minimum proper sentence was four years.

5. The time spent in custody on remand was to count towards the substituted sentence as before.

• Court of Appeal (Criminal Division) Allowed the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, quashed the two-year sentence and substituted four years’ imprisonment: [2009] EWCA Crim 1438.
• Sentencing court His Honour Judge Clarke sentenced the offender to two years’ imprisonment following a guilty plea to aggravated burglary.