Calvert & Anor, R. v

In sentencing aggravated burglary within category 1 of the definitive guideline, the court must assess the combined aggravating and mitigating features when selecting a starting point within the prescribed range. Serious trauma, threats of violence, weapons, a targeted victim and offending while on licence may justify a substantial sentence. However, the absence of actual physical or psychological injury may be a significant countervailing feature. A sentence may therefore be excessive where the starting point gives insufficient weight to that absence, even though the offending was grave. Personal mitigation, youth where relevant, and full credit for a guilty plea must then be reflected in the final sentence.

The appellants, brothers aged 18 and 21 at the time of the offence, pleaded guilty at Durham Crown Court to aggravated burglary. They had forced entry into a woman’s home while looking for a man with whom they had a dispute over a small drug debt. One threatened to blind the householder with ammonia and the other threatened that he had a knife. A baby was present.

The Recorder treated the offence as category 1 under the definitive guideline on aggravated burglary and burglary. He imposed seven years’ detention in a young offender institution on Calvert and eight years’ imprisonment on Oliver. Both appealed against sentence with permission of the single judge.

The central issue was whether the Recorder had selected an excessive starting point within the category 1 range, having regard to the aggravating features, the absence of actual injury, and the appellants’ personal mitigation.

1. The appeals were allowed. The court quashed the sentences of seven years’ detention and eight years’ imprisonment, and substituted six years’ detention for Calvert and seven years’ imprisonment for Oliver.

2. The Recorder had correctly treated the aggravated burglary as a category 1 offence under the definitive guideline. The offending involved serious trauma, threats of serious violence, ammonia and a knife, a targeted search for the intended victim, more than one offender, a child in the premises, intoxication, offending while on licence, and significant previous convictions.

3. Those features made the sentencing exercise difficult and justified a substantial custodial sentence. Nevertheless, the Recorder had moved too far within the category 1 range by selecting a starting point of 13 years before mitigation and plea credit. The absence of actual physical or psychological injury was, despite the horrific and traumatic nature of the event, a significant mitigating feature.

4. An appropriate revised starting point was 11½ years. For Oliver, personal mitigation reduced that figure to 10½ years, followed by full credit for his guilty plea, producing seven years’ imprisonment. For Calvert, personal mitigation and youth reduced the figure to nine years; full plea credit produced six years’ detention. The court rejected the submission that Calvert’s youth required a further reduction beyond that allowed by the Recorder.

5. R v Forrest [2012] EWCA Crim 3112 provided little assistance because sentencing comparisons depend on their own facts and the offender in that case had no convictions for the preceding ten years. The Recorder’s ancillary orders remained undisturbed.

• Court of Appeal (Criminal Division) Allowed both appeals against sentence, quashed the original sentences, and substituted six years’ detention for Calvert and seven years’ imprisonment for Oliver.
• Crown Court at Durham The appellants pleaded guilty to aggravated burglary on 12 April 2016. On 4 May 2016, Mr Recorder Jackson QC sentenced Calvert to seven years’ detention in a young offender institution and Oliver to eight years’ imprisonment.