Shallcross, R v

A sentencing court must follow the relevant offence-specific guideline under the Coroners and Justice Act 2009. Where a burglary contrary to section 9(1)(b) involves inflicted, attempted or intended grievous bodily harm, the burglary guideline remains the starting point. The court may also consider the violence guideline when deciding whether the interests of justice require a sentence outside the burglary range.

The differing statutory maxima must be respected. The offender must not be sentenced as though convicted of a more serious violence offence which was not charged. Serious later offending intended to intimidate the victim of the first offence, particularly when committed on bail in breach of a protective condition, may properly attract consecutive sentencing, subject to totality.

The offender was convicted after trial in the Crown Court at Plymouth of burglary under section 9(1)(b) of the Theft Act 1968 and witness intimidation. He also pleaded guilty on a limited basis to dangerous driving. The burglary involved entering the complainant’s home while she slept and dropping a heavy television onto her head, intending grievous bodily harm.

While on bail for that offence and subject to a condition not to contact the complainant, he threatened and intimidated her and drove dangerously. The Recorder imposed a total of four years and six months’ imprisonment, with concurrent sentences for the later offences. On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the issue was whether the sentence was unduly lenient and whether the violence guideline could inform sentence for this form of burglary.

1. The court granted leave and held that the total sentence was unduly lenient. It quashed the sentences and substituted a total term of six years and nine months’ imprisonment.

2. The domestic burglary guideline was binding and category 1 was the category which most resembled the offence. However, the guideline was principally directed to acquisitive burglary. Its range did not adequately address every case in which a trespasser enters a home intending, attempting or inflicting grievous bodily harm.

3. Under section 125 of the Coroners and Justice Act 2009, the sentencer had to follow the burglary guideline unless that would be contrary to the interests of justice. The conduct could also have been charged as attempted wounding or causing grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1868. The violence guideline was therefore relevant when considering whether departure from the burglary range was justified. It could not be used to sentence the offender as though he had been convicted of that uncharged offence. The differing maximum sentences also had to remain firmly in view.

4. The burglary, viewed alone, justified at least seven years’ imprisonment after trial. The later intimidation and dangerous driving materially increased the overall criminality. They were committed on bail and in breach of a condition intended to protect the victim, and should in principle have attracted consecutive sentencing. Applying totality, the court imposed six years on count 1, nine months consecutively on count 2, and six months concurrently on count 3.

5. Applying R v Needham & Ors [2016] EWCA Crim 455, the court adjusted the driving disqualification to five years and ten months. A further requirement to pass an extended driving test was inappropriate because such an order already applied from the offender’s earlier conviction.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the unduly lenient sentences and substituted a total of six years and nine months’ imprisonment: [2017] EWCA Crim 2060.
• Crown Court at Plymouth: The offender was convicted after trial of burglary and witness intimidation, and pleaded guilty on a limited basis to dangerous driving. The Recorder imposed a total of four years and six months’ imprisonment. No lower-court citation was stated.