Whittles, R v

A sentencing court must fix a custodial term that is commensurate with the seriousness of the current offence or associated offences. It must not inflate that term merely because statutory provisions governing a revoked licence may otherwise prevent the offender serving further custody for later offending. In sentencing repeated domestic burglary, the presence of an occupier, multiple offences, offending soon after release, and a relevant record may substantially aggravate seriousness. Mitigation, including co-operation, an early guilty plea and remorse, must also be given proper effect.

The appellant pleaded guilty at Sheffield Crown Court to domestic burglary. Five further domestic burglaries were taken into consideration. He received four years and eight months’ imprisonment after the judge adopted a seven-year starting point following a trial.

The appellant had committed the burglaries shortly after release on licence from a sentence for a similar offence. The sentencing judge was concerned that the statutory regime for revoked licences might mean that a lower sentence would add no further time in custody. The appeal challenged the starting point as disproportionate and submitted that it had been inflated for that impermissible purpose.

1. Appeal allowed. The court quashed the sentence of four years and eight months’ imprisonment and substituted three years and four months’ imprisonment.
2. Section 265 of the Criminal Justice Act 2003 prevented a new sentence from being made consecutive to the earlier sentence after revocation of the appellant’s licence. The removal of the former power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 could therefore leave a court unable to impose further effective custody for later offending. That statutory consequence could not justify a disproportionate sentence. Under section 153 of the Criminal Justice Act 2003, the custodial term had to be the shortest commensurate term. The contrary course had been disapproved in R v Drewett [2007] Cr App R(S) 169.
3. The domestic-burglary guidance in R v Saw & Ors [2009] EWCA Crim 1 identified material aggravating features. They included the occupier’s presence, the six separate burglaries, offending shortly after release for a similar offence, and the appellant’s substantial record. The court also treated that record as entitled to considerable weight, consistently with the observation noted from R v Brewster [1998] 1 Cr App R(S).
4. A substantial custodial sentence was justified. However, the seven-year starting point was too high and appeared to have been influenced by the judge’s concern that a lesser term would not result in further custody. The proper starting point was five years. Allowing appropriate credit for the early guilty plea produced a sentence of three years and four months.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 580, allowed the sentence appeal and substituted three years and four months’ imprisonment.
• Sheffield Crown Court: On 24 October 2008, imposed four years and eight months’ imprisonment following a guilty plea to domestic burglary; five further burglaries were taken into consideration.