Powell, R v

Where aggravated burglary is charged by reference to grievous bodily harm inflicted after entry, possession of a weapon on entry is not inherent in the offence. It may therefore be treated as a higher-culpability feature under the applicable sentencing guideline.

An erroneous prosecution concession on guideline categorisation does not ordinarily prevent correction on an Attorney-General’s Reference. Where it was made during a Goodyear indication, however, fairness requires a case-specific assessment of the parties’ conduct, the offender’s reliance, and the interests of the victim and public. A sentence may be increased, but the court should avoid injustice caused by departure from the position advanced below.

The offender pleaded guilty at Bristol Crown Court to aggravated burglary and common assault. He entered the victim’s flat carrying a knife, threatened him, inflicted injuries including a fractured wrist, and caused significant psychological consequences.

Following a Goodyear indication, the Recorder sentenced him to three years and nine months’ imprisonment for aggravated burglary and four consecutive months for common assault. The Attorney General referred the aggravated-burglary sentence as unduly lenient under section 36 of the Criminal Justice Act 1988.

The central issues were whether the aggravated burglary had been wrongly placed in category 2 rather than category 1 of the guideline, and whether fairness permitted an increase despite the prosecution’s erroneous categorisation during the indication process.

1. Disposition. The court gave leave to the Attorney General and held that the aggravated-burglary sentence was unduly lenient. It substituted six years’ imprisonment for that count. The consecutive four-month sentence for common assault remained, producing a total sentence of six years and four months.

2. The agreed categorisation below was legally wrong. This form of aggravated burglary was complete when grievous bodily harm was inflicted, and the prosecution needed to prove possession of the weapon at that time. Possession of the knife on entry was therefore not an element inherent in the charged offence. It was available as a higher-culpability factor under the Sentencing Council guideline.

3. The court considered that the case might have fallen within category 1. It would nevertheless be unjust to move it into that category on the reference, given the prosecution’s category 2 concession in the Goodyear hearing and its influence on the indication. The court instead sentenced within the full category 2 range.

4. Goodyear ([2006] 1 Cr App R(S) 6) confirmed that an indication does not remove the Attorney General’s right to refer an unduly lenient sentence, and that a reference after prosecutorial conduct suggesting support for an indication requires a case-specific fairness assessment. The court also had regard to Attorney-General's Reference (R v Stewart) ([2017] 1 Cr App R(S) 48), R v Newman ([2011] 1 Cr App R(S) 68) and R v Susorovs ([2016] EWCA Crim 1856).

5. Within category 2, the seriousness placed the case near the top of the range before mitigation. The court allowed for the late guilty plea and further personal mitigation that counsel had not advanced below because of concern that a lower indication might prompt a reference. A six-year term was just and proportionate.

• Court of Appeal (Criminal Division) — On an Attorney-General’s Reference under section 36 of the Criminal Justice Act 1988, the court held the aggravated-burglary sentence unduly lenient and substituted a six-year term: [2017] EWCA Crim 2324.
• Bristol Crown Court — Following a guilty plea after a Goodyear indication, the Recorder imposed three years and nine months’ imprisonment for aggravated burglary and four consecutive months for common assault.