Bailey, R. v

Previous convictions may aggravate sentence and deterrence may justify a sentence outside applicable guidelines. However, the resulting sentence must retain a proportionate relationship to the offence and the offender’s circumstances. A serious record of repeat offending cannot justify an increase that gives past offending disproportionate weight. The appellate court will reduce a sentence where this limit is exceeded, while maintaining an appropriate custodial response to the current offences.

The appellants, brothers, pleaded guilty to a burglary of a security cabin. Vance Bailey also pleaded guilty to a separate burglary of a public house. They were committed from the magistrates’ court to Manchester Crown Court for sentence because of their extensive previous offending.

The Crown Court imposed concurrent sentences of 42 months’ imprisonment for the joint burglary, and a concurrent 42-month sentence for Vance Bailey’s second burglary. The sentences exceeded the guideline range because of their previous custodial sentences, repeated burglary convictions, recent release from custody and drug-related offending.

The appeals concerned the extent to which previous offending and the likelihood of future offending could increase an otherwise appropriate custodial sentence.

1. The appeals were allowed. The 42-month sentences were quashed and replaced by sentences of 30 months’ imprisonment for each appellant.

2. Section 143(2) of the Criminal Justice Act 2003 required the court to treat the appellants’ previous convictions as aggravating features. Section 142(1)(b) also permitted a deterrent sentence. Their extensive histories, recent release from custody and failure of earlier non-custodial disposals justified sentences outside the guidelines.

3. Those considerations did not remove the requirement of proportionality. As stated in R v Darren Langley [2011] EWCA Crim 2471, sentence must bear a proportionate relationship to the offence and the offender’s circumstances. The threat made to the security guard materially aggravated the joint burglary, but the sentencing judge had increased the sentences for previous offending to a degree that was disproportionate to the offences.

4. Allowing one-third credit for the guilty pleas, 30 months’ imprisonment was the appropriate sentence in each case. The substituted sentences reflected both the seriousness of the current offending and the appellants’ records without giving the latter excessive weight.

• Court of Appeal (Criminal Division): Allowed the sentence appeals and substituted sentences of 30 months’ imprisonment: [2013] EWCA Crim 1779.
• Manchester Crown Court: Sentenced each appellant to 42 months’ imprisonment for burglary, with a concurrent sentence of 42 months for Vance Bailey’s additional burglary.