McCloskey, R v

For sentencing a commercial burglary under the applicable guideline, the court must assess both the harm actually caused and the harm intended. The fact that little or no property was ultimately removed does not require a finding of lesser harm where a planned enterprise was interrupted shortly before the intended theft of high-value equipment. In such circumstances, the offence may properly fall within category 1 for higher culpability and greater harm.

Previous convictions, offending during the operational period of a suspended sentence, and appropriate credit for a guilty plea remain material features of the overall sentencing exercise.

The appellant pleaded guilty in the Crown Court at Warwick to burglary of commercial premises. He and two co-accused entered a construction site after hiring a van and equipped themselves with items including a crowbar and bolt cutters. They broke into a cabin and assembled equipment, tools and laptops worth about £12,000 for removal, but were interrupted by police before any significant property was taken.

The Recorder imposed 16 months’ imprisonment and activated in full an 18-week suspended sentence because the offence was committed during its operational period. The appellant appealed against sentence, contending that the Recorder gave excessive weight to intended harm despite the minimal actual loss.

1. Appeal dismissed. The sentence was not excessive.

2. The applicable Sentencing Council Guideline required the court to assess harm caused or intended. Although cases may arise in which the difference between an offender’s intention and the success of the enterprise requires separate weight, this was not such a case.

3. The offenders had undertaken a planned commercial burglary. They had hired a van, possessed equipment capable of facilitating the theft, forced entry, and assembled high-value construction equipment for collection. Their failure to remove it resulted from police intervention shortly before they achieved their object. The intended loss therefore properly supported classification in category 1, involving higher culpability and greater harm.

4. The Recorder was entitled to adopt the category 1 starting point. The appellant’s unattractive record and commission of the offence during the operational period of a suspended sentence were aggravating features. Full and accurate credit had been given for the guilty plea. There was no proper basis to challenge activation of the suspended sentence.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 608, dismissed the appellant’s appeal against sentence.
• Crown Court at Warwick: The appellant pleaded guilty to commercial burglary and received 16 months’ imprisonment. An 18-week suspended sentence was activated in full, producing a total term of 20 months’ imprisonment.