Burns, R. v

Where the statutory minimum sentence for a third domestic burglary would otherwise apply, a court may impose a community order if it concludes that particular circumstances make the minimum term unjust. By the combined effect of section 164 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 305(4) of the Criminal Justice Act 2003, the restriction on community orders does not apply once the court holds that the statutory exception is satisfied.

An assessed drug rehabilitation requirement may therefore form part of a constructive community disposal where it is appropriate to break an offender’s cycle of offending.

The appellant pleaded guilty to domestic burglary and was sentenced at the Crown Court at Cardiff to three and a half years’ imprisonment. His previous domestic-burglary convictions engaged the statutory minimum sentence under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, unless particular circumstances made that sentence unjust.

On appeal against sentence, an assessment ordered by the single judge recommended a medium-intensity drug rehabilitation requirement and supervision as part of a community order. The central issue was whether a community order was legally available despite the statutory-minimum regime.

1. The appeal was allowed. The sentence of three and a half years’ imprisonment was quashed and replaced with a community order comprising supervision for two years and a medium-intensity drug rehabilitation requirement for nine months.
2. The court accepted that section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 ordinarily required an appropriate custodial sentence of at least three years for a qualifying third domestic burglary. The requirement did not apply where particular circumstances relating to the offences or offender made it unjust in all the circumstances.
3. Section 150 of the Criminal Justice Act 2003 appeared to prevent a community order where sentence fell to be imposed under section 111(2). However, section 164 of the 2000 Act required that expression to be read with section 305(4) of the 2003 Act. Under that provision, a sentence falls to be imposed under section 111(2) only if it is required and the court is not of the opinion that the statutory injustice exception applies. The court therefore had power to make the community order.
4. The fresh assessment supported a rehabilitative disposal. R v Bradley (1983) 5 Cr App R(S) 365 was not authority for a legal proposition, but illustrated the value of considering whether a constructive disposal could break a cycle of offending. The court warned that breach of the order could result in a substantial custodial sentence.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 1907, allowed the appeal against sentence, quashed the custodial sentence, and substituted a community order.
• Crown Court at Cardiff — On 14 May 2009, sentenced the appellant to three and a half years’ imprisonment following his guilty plea to domestic burglary.