Miller, R v

A defendant may not be sentenced for the higher category of burglary applicable to a dwelling unless the indictment and guilty plea establish that the building or relevant part was a dwelling. Where that factual ingredient produces a higher statutory maximum sentence, it must be distinctly alleged. A plea to burglary of a named care home, without an allegation that it was a dwelling, does not admit a domestic burglary for the purposes of repeated domestic burglary sentencing under Powers of Criminal Courts (Sentencing) Act 2000, section 111.

The appellant pleaded guilty in the Crown Court at Merthyr Tydfil to burglary contrary to section 9(1)(b) of the Theft Act 1968. The indictment alleged entry into Ty Porth Care Home and theft of property, but did not allege that the building or relevant part was a dwelling.

The sentencing judge treated the offence as a domestic burglary for section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. After reconstituting the court and transferring the matter to the Crown Court, the judge imposed two and a half years’ imprisonment. The appellant appealed against sentence. The central issue was whether his guilty plea admitted a dwelling burglary.

1. Appeal allowed. The sentence of two and a half years’ imprisonment was quashed and substituted with two years’ imprisonment.
2. Section 9(3) of the Theft Act 1968 prescribes a higher maximum sentence where burglary concerns a dwelling. That distinction depends upon an additional factual ingredient. The court held that, consistently with R v Courtie [1984] AC 463, the ingredient must be specified in the particulars where it exposes the defendant to the higher maximum penalty.
3. The count alleged burglary of a named care home, but did not allege that it, or the relevant part of it, was a dwelling. The word “home” in the building’s name could not establish that fact. The guilty plea therefore did not admit a dwelling burglary and supplied no basis for treating the offence as a domestic burglary under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000.
4. It was unnecessary to determine the appellant’s procedural objections to the transfer and sentencing process. The substantive error alone required resentencing. The burglary was serious because it occurred close to rooms occupied by elderly residents, and the appellant had a grave record of offending. Allowing full credit for the guilty plea, the proper sentence was two years’ imprisonment, effective from the date of the original sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the sentence of two and a half years’ imprisonment, and substituted two years’ imprisonment.
• Crown Court at Merthyr Tydfil: Following a guilty plea to burglary, the judge treated the offence as a repeated domestic burglary under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 and imposed two and a half years’ imprisonment.
• Merthyr Tydfil Magistrates’ Court: Committed the appellant for trial on charges of burglary and going equipped for burglary.