McMillan, R. v

Where offending comprises a very large number of serious burglaries, a sentencing court may conclude that the normal guideline range is inadequate because sentencing within it would be contrary to the interests of justice under Coroners and Justice Act 2009, section 125. Separate conspiracies may properly attract consecutive sentences where they involve different participants, materially separate offending and distinct criminal episodes. The resulting aggregate sentence must nevertheless remain just and proportionate. An appellate court will not interfere with a trial judge’s assessment of an offender’s role and culpability unless there is an error of principle or the assessment is clearly wrong.

The appellants challenged sentences imposed in the Crown Court at Southampton on 31 July 2015 for their involvement in dwelling-burglary conspiracies.

Smithard-Powell had pleaded guilty to a Reading conspiracy involving 14 burglaries and a separate Southampton conspiracy involving 72 burglaries, theft of high-value vehicles and associated handling. The judge imposed six years’ imprisonment for the Southampton conspiracy and a consecutive four years for the Reading conspiracy.

McMillan, aged 17 when offending, was convicted after trial of the Southampton conspiracy. Her role included arranging taxis and accommodation, passing messages and accompanying Smithard-Powell while he acquired items used in the offending. She received concurrent three-year detention terms. The issues were whether the sentences were manifestly excessive and, for Smithard-Powell, whether consecutive sentences offended the totality principle.

1. Both sentence appeals were dismissed. Smithard-Powell’s total sentence of 10 years was neither unjust nor disproportionate. McMillan’s concurrent three-year detention sentences were not manifestly excessive.

2. The Reading offending, viewed alone, fell within Category 1 of the burglary guideline. Smithard-Powell’s admitted involvement in 14 burglaries, together with the professional planning, night-time entry into occupied homes, high-value targets, serious victim impact and relevant convictions, justified a provisional sentence at the top of that range.

3. The Southampton conspiracy involved 72 burglaries and theft of vehicles worth more than £500,000. The guidelines applied to a single offence. Given the scale and gravity of this offending, the sentencing judge was entitled under section 125 of the Coroners and Justice Act 2009 to find that sentencing within the normal guideline range would be contrary to the interests of justice. A nine-year starting point before guilty-plea credit was justified.

4. The conspiracies were properly treated as separate offences for totality purposes. They involved different personnel, occurred largely in different geographical areas, and the Southampton offending continued while Smithard-Powell knew he was wanted for the Reading matters. Consecutive sentences were therefore permissible. Considering the 86 admitted night-time dwelling burglaries over five months and the aggravating features, the aggregate 10-year sentence was entirely proper.

5. For McMillan, the judge had recognised her youth, good character, personal mitigation and lesser role, including Smithard-Powell’s controlling influence. He had also been entitled to reflect the grave conspiracy in which the jury found she had participated. As the trial judge was best placed to assess her role and culpability, the Court of Appeal could intervene only for an error of principle or a clearly wrong assessment; neither was established.

• Court of Appeal (Criminal Division) — dismissed both appeals against sentence: [2016] EWCA Crim 409.
• Crown Court at Southampton — on 31 July 2015, sentenced Smithard-Powell for the Reading and Southampton conspiracies, and sentenced McMillan following her conviction for the Southampton conspiracy.