Cessford & Anor, R. v

A dwelling-house burglary is triable only on indictment where a person in the dwelling is subjected to violence or a threat of violence during the burglary. The classification concerns the nature of the burglary, rather than the separate roles of co-offenders. Any degree of violence or threat suffices.

Where a statutory minimum sentence applies, the court must first apply the relevant sentencing guideline and then ensure that the sentence is not below the minimum. The minimum is not itself the guideline starting point. Greater harm, higher culpability and substantial aggravating features may require a sentence materially above it.

The offenders were convicted at the Crown Court at Basildon of dwelling-house burglary contrary to section 9(1)(b) of the Theft Act 1968. During the burglary, Cessford was encountered in a bedroom holding a knife taken from the house. Both offenders denied the offence at trial. Cessford received three years’ imprisonment and Maxwell, who was 17 at the time, received 21 months’ detention in a young offender institution.

The Attorney General referred both sentences as unduly lenient. The central preliminary issue was whether Maxwell’s burglary was indictable only, and therefore within the court’s reference jurisdiction, because an occupier had been subjected to a threat of violence.

1. The references were allowed. The court granted leave to the Attorney General and substituted four years and six months’ imprisonment for Cessford and 33 months’ detention for Maxwell.

2. The court had jurisdiction in Maxwell’s case. Under section 35(3)(b)(i) of the Criminal Justice Act 1988, a reference may concern an offence triable only on indictment. A dwelling-house burglary falls within paragraph 28(c) of Schedule 1 to the Magistrates’ Courts Act 1980 where a person in the dwelling is subjected to violence or a threat of violence.

   Following R v McGrath [2004] 1 Cr App R 15, the degree of violence is immaterial and the relevant threat may occur during the whole burglary incident. The provision classifies the burglary itself and does not require attribution of the threatening act to each individual offender. The knife, taken upstairs and displayed when the occupier confronted Cessford, plainly supplied sufficient evidence of a threat.

3. Cessford’s three-year term was unduly lenient. Although it was the statutory minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the court applied R v McKay [2012] EWCA Crim 1900: the sentencing guideline must be applied first and the statutory minimum operates as a floor, not as the starting point. Category 1 burglary, the threat with a knife, an occupier’s presence, sentimental loss, joint offending and serious previous convictions required a significant uplift. The appropriate sentence was at least four years and six months.

4. Maxwell’s age justified a lower sentence than Cessford’s. However, he was close to 18, there was no evidence of particular immaturity, and he had significant previous domestic-burglary convictions. His lesser role did not prevent the 21-month term from being unduly lenient. The appropriate sentence was 33 months.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held both sentences unduly lenient and substituted higher sentences: [2016] EWCA Crim 1408.

• Crown Court at Basildon: On 17 March 2016, the offenders were convicted of burglary and sentenced respectively to three years’ imprisonment and 21 months’ detention in a young offender institution.