Bastow, R. v

For a third domestic burglary, the statutory minimum custodial sentence must be applied unless particular circumstances relating to the offence or offender make that result unjust. A speculative prospect of rehabilitation will not justify departure where a persistent drug-related burglar has repeatedly failed to respond to treatment and remains highly likely to reoffend.

However, the sentencing court must still give proper, if limited, effect to a late guilty plea and to a restrictive curfew. Those factors may justify a sentence below the statutory minimum where imposing the full minimum would itself be unjust.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to review as unduly lenient a suspended sentence imposed on Russell Bastow for dwelling-house burglary.

At the Crown Court at Swindon, Judge Field imposed 12 months’ imprisonment suspended for 18 months, with supervision, drug rehabilitation and offending-behaviour conditions. The offender had extensive convictions, including domestic burglaries, and committed the present offence to fund a long-standing drug habit. The victim was an elderly and vulnerable woman whose sense of security was seriously affected.

The central issue was whether the statutory minimum regime for a third domestic burglary under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 should have been applied.

1. The Attorney General’s reference was allowed. The suspended sentence was unduly lenient and was replaced with two years and six months’ immediate imprisonment.

2. Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 applied because the offender fell within the statutory regime for a third domestic burglary. The sentencing judge had not identified why it would be unjust to apply that regime, despite being aware of it.

3. The offender’s drug addiction, accommodation, relationship and proposed treatment did not provide sufficient justification for a suspended sentence. The court accepted that previous courts had repeatedly adopted rehabilitative measures, but those measures had failed. There was no sufficient evidence of a genuine or lasting change, or that the pattern of committing domestic burglary to fund drug use had been broken.

4. The burglary was serious. It was committed in the home of an elderly, vulnerable victim and caused lasting fear, although the home had not been selected because of her vulnerability. The offender’s extensive record of domestic burglary and continued risk of reconviction materially aggravated the offence.

5. The court nevertheless gave limited credit for the late guilty plea and recognised the restrictive effect of the curfew. It would be unjust to disregard those matters entirely. A sentence of two years and six months’ imprisonment was therefore substituted, to take effect immediately. No additional direction under section 240 of the 2003 Act was appropriate.

• Court of Appeal (Criminal Division): The Attorney General’s reference under section 36 of the Criminal Justice Act 1988 was allowed. The court substituted two years and six months’ immediate imprisonment.
• Crown Court at Swindon: Judge Field sentenced the offender to 12 months’ imprisonment suspended for 18 months, subject to supervision, drug rehabilitation and offending-behaviour conditions.