Brinkley, R v

Sentencing guidelines must be followed unless departure would be contrary to the interests of justice, but they are flexible enough to accommodate material aggravating and mitigating circumstances within their categories. A sentencing court should not treat a departure as necessary where that flexibility is sufficient.

For a category 3 domestic burglary without features of greater harm or culpability, an offender’s extensive relevant convictions, though a potent aggravating factor, did not in the circumstances justify a five-year post-trial starting point. The statutory minimum sentence, subject to proper credit for a guilty plea, provided the appropriate basis for sentence.

The applicant pleaded guilty at Chelmsford Crown Court to burglary of a dwelling house, contrary to section 9(1)(b) of the Theft Act 1968. He had entered his former stepmother’s home and stolen cash and jewellery worth about £300.

He was a third-strike burglar and had a lengthy history of comparable offending. The Recorder imposed 40 months’ imprisonment. The applicant renewed his application for leave to appeal against sentence after a single judge had refused permission. The only ground pursued was that the overall sentence was manifestly excessive.

1. The court granted leave and allowed the appeal against sentence. It quashed the sentence of 40 months’ imprisonment and substituted a sentence of two years and five months’ imprisonment.

2. Section 125(1) of the Coroners and Justice Act 2009 requires a sentencing court to follow applicable guidelines unless that would be contrary to the interests of justice. The guidelines are not rigid. They allow significant flexibility for relevant mitigation and aggravation. In this case, the Recorder did not need to depart from them in order to reflect the applicant’s antecedents.

3. The offence was, despite its unpleasant features, a category 3 domestic burglary. It involved no particular feature of increased harm or culpability. The applicant’s extensive history of similar offending was a very potent aggravating factor. However, it did not, in the circumstances, justify treating this category 3 offence as warranting a five-year custodial starting point after trial.

4. The applicant was subject to the minimum-sentence provisions of section 11 of the Powers of Criminal Courts (Sentencing) Act 2000, which required a three-year minimum term subject to proper credit for his guilty plea. That statutory minimum was the appropriate basis for sentence. Applying the appropriate plea reduction produced the substituted term of two years and five months.

• Court of Appeal (Criminal Division): Granted the renewed application for leave to appeal and allowed the sentence appeal, reducing the custodial term from 40 months to two years and five months.

• Chelmsford Crown Court: Following a guilty plea to dwelling-house burglary, imposed 40 months’ imprisonment on 21 December 2012.