Flack, R. v

Where a burglary count alleges that premises were a dwelling-house and that allegation is disputed, the issue must be determined by a jury on properly framed alternative counts. It cannot be resolved by a Newton hearing. A guilty plea to the dwelling allegation requires sentencing on that basis.

The three-year minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 may be displaced where particular circumstances relating to the offender or the offences make its imposition unjust in all the circumstances. Relevant matters may include the offender’s age at earlier qualifying offences and the particular harm and circumstances of each burglary. If the minimum is displaced, the statutory restriction on guilty-plea credit does not apply.

The appellant pleaded guilty at Snaresbrook Crown Court to burglary of a dwelling-house. The property was undergoing renovation, and the appellant contended that it was a building site rather than a dwelling. Although the plea included the dwelling allegation, the Crown Court held a Newton hearing to determine that issue. It found that the property was a dwelling and imposed 29 months’ imprisonment.

The appellant appealed by leave of the single judge. He challenged the use of the Newton hearing and contended that, despite his liability to the minimum sentence regime in section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, a three-year sentence would be unjust in all the circumstances.

1. Appeal allowed. The sentence of 29 months’ imprisonment was quashed and replaced with 18 months’ imprisonment.
2. A Newton hearing was the wrong procedure for resolving whether the premises were a dwelling-house. Applying Courtie [1984] AC 463, and noting that the same principle had been applied to dwelling-house burglary in R v Gary miller [2010] EWCA Crim. 809, the court held that a count alleging burglary of a dwelling-house must specifically aver that fact. If it is not admitted, the defendant should plead not guilty and the indictment should contain alternative dwelling and non-dwelling counts for determination by a jury.
3. Nevertheless, the appellant had pleaded guilty to a count alleging burglary of a dwelling. The sentencing court, and the Court of Appeal, therefore had to proceed on that basis. He was liable to the three-year minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, unless particular circumstances relating to him or the offences made that unjust in all the circumstances.
4. The combined circumstances made the minimum unjust. They included the appellant’s youth at the first qualifying burglary, the opportunistic taking of an accessible telephone, the renovation of the premises, the absence of evidence of an occupied home or property belonging to its owner within it, and the limited features of the earlier qualifying burglaries.
5. The proper starting point was two years’ imprisonment. As the minimum regime was not being applied, the 20 per cent limit on guilty-plea credit did not apply: Darling [2010] 1 Cr.App.R (S) 63. A 25 per cent reduction was appropriate because the appellant had been caught red-handed.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence, quashed the 29-month sentence and substituted 18 months’ imprisonment: [2013] EWCA Crim 115.
• Snaresbrook Crown Court Following a guilty plea to burglary of a dwelling-house, held a Newton hearing on whether the premises were a dwelling and imposed 29 months’ imprisonment.
• Magistrates’ Court Sent the case to the Crown Court as an indictable-only dwelling-house burglary.