Ogungbile, R. v

A sentencing court must assess harm by reference to criminality attributable to the offender. It cannot treat loss, anxiety or distress caused by fraud begun before a burglary as harm caused by that burglary, although the intended use of stolen banking documents may demonstrate significant potential loss.

A burglary confined to a communal area, where no individual flat has been entered or attacked, will generally be treated as non-domestic for sentencing purposes. The assessment remains fact-specific. Deliberately targeting personal mail in ostensibly secure post boxes remains serious, particularly where confidential banking information is sought.

Separate, planned burglaries committed after arrest may properly attract consecutive sentences, subject to totality.

The appellant pleaded guilty to five counts on an indictment, including two burglaries of communal areas in a block of flats, possession of articles for use in fraud, possession of burglary tools, and criminal damage. He had also pleaded guilty in the magistrates’ court to theft and handling charges which were intended to be alternatives.

At Inner London Crown Court, he received a total sentence of four years and eight months’ imprisonment, including eight months activated from a suspended sentence. On appeal, it emerged that the sentencing judge had been misinformed about fraud losses suffered by one victim before the first burglary. The court also had to determine the proper classification of the burglaries and correct the procedural consequences of the alternative magistrates’ court charges.

1. The appeal was allowed. The court quashed the conviction for handling stolen goods, which had been charged in the alternative to theft, and substituted an acquittal. It quashed the sentence for theft and directed that no separate penalty be imposed because the theft was to be treated as an alternative to Count 1 on the indictment.

2. The appellant had to be sentenced only for the indictment offences and on the corrected facts. The fraud on Ms C began before the first burglary. Her financial loss, anxiety and distress could therefore not fairly be attributed to the appellant’s involvement in that burglary. The intended use of the documents could, however, be considered when assessing the potential loss and seriousness of his conduct.

3. Applying the general thrust of R v Lisa Doyle, the court held that burglaries of the communal lobby and mail-box area were non-domestic under the sentencing guidelines. No individual flat had been entered. That did not diminish the seriousness of targeting mail which recipients expected to be secure, especially where banking and credit-card information was the intended target.

4. Count 1 warranted a sentence of 18 months before one-third credit for the guilty plea, producing 12 months’ imprisonment. Count 4 was a further planned offence at the same premises after arrest for Count 1 and warranted 24 months before credit, producing 16 months. Those terms were properly consecutive. The whole suspended sentence could properly be activated, although the court left undisturbed the activation of eight months only. The remaining concurrent sentences were reduced to six months, save for the undisturbed concurrent sentence of three months on Count 5.

5. The resulting total sentence was three years’ imprisonment. Totality required no further reduction.

• Court of Appeal (Criminal Division) — Allowed the sentence appeal in [2017] EWCA Crim 1826. Reconstituting itself as a Divisional Court, it granted judicial review relief to quash the alternative handling conviction and substitute an acquittal.
• Inner London Crown Court — On 1 December 2016, imposed a total sentence of four years and eight months’ imprisonment, including eight months activated from a suspended sentence.
• South London Magistrates’ Court — On 3 November 2016, accepted guilty pleas to theft and handling stolen goods and committed the appellant to the Crown Court for sentence.