Silvera, R. v

For a third domestic burglary subject to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the statutory minimum is a cross-check, not the starting point. The court must first assess sentence under the applicable Sentencing Council guideline, including relevant aggravating features and guilty-plea credit. It must then ensure that the final term complies with the statutory minimum requirement.

Relevant previous convictions may aggravate the current burglary even though they trigger the statutory minimum regime. That does not amount to double-counting, because the antecedents also bear on the seriousness of the present offence.

The appellant pleaded guilty at Snaresbrook Crown Court to burglary of a dwelling. The offence was his third conviction for domestic burglary and was committed while he was on licence for the second. He had an extensive record of convictions for theft-related offending.

The Crown Court treated the three-year minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 as the starting point, increased it for aggravating features, and imposed 40 months’ imprisonment after allowing 20 per cent credit for the guilty plea.

With leave of the single judge, the appellant challenged both the starting point and the reduction for his guilty plea. The central issue was the correct sentencing method where the statutory minimum for a third domestic burglary applies.

1. Appeal allowed to the extent of sentence. The sentence of 40 months’ imprisonment was quashed and replaced with 30 months’ imprisonment.
2. The correct approach, stated in R v Michael Andrews [2013] 2 Cr.App.R (S) 5 and Gordon Thomas Finley McKay [2012] EWCA Crim. 1900, was to conduct the ordinary guideline sentencing exercise first. The court must then check that the final sentence is not below the minimum required by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. The three-year minimum is not itself the starting point and the appropriate sentence may, depending on the case, be materially higher.
3. This burglary fell within category 2 of the burglary guideline. Its ordinary starting point was one year’s custody, with a range from a high-level community order to two years’ custody. The appropriate starting point could nevertheless be increased beyond that range because the offence was committed while the appellant was on licence and because of his two previous domestic burglaries and extensive further offending.
4. Using the previous convictions as aggravating features did not double-count them. Their role in activating the statutory minimum did not prevent them from increasing the seriousness of the present offence in the guideline assessment.
5. The court fixed three years’ imprisonment as the proper pre-plea starting point. Allowing guilty-plea credit produced a term of 30 months, which satisfied the applicable section 111 requirement.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 30 months’ imprisonment.
• Snaresbrook Crown Court: Following a guilty plea to burglary of a dwelling, imposed 40 months’ imprisonment on 2 November 2012.