Gilmore, R v

Under the Burglary Offences Definitive Guideline (2011), a dwelling burglary should not be placed in the most serious category merely because cash was left in birthday cards, the offence occurred at Christmas, or the victim suffered the ordinary distress of intrusion and theft. The guideline’s indicators of greater harm must be present. Where greater harm is absent but group activity establishes higher culpability, the offence falls within category 2.

The court must then reassess the sentence from the correct guideline range and give proper weight to personal mitigation, including sustained efforts to address substance misuse. A suspended sentence may be appropriate where rehabilitation prospects support it.

The appellant pleaded guilty at Sheffield Crown Court to burglary of a dwelling and criminal damage. He received 27 months’ detention in a young offenders institution for the burglary, with one month concurrent for criminal damage.

The burglary involved entry through an unlocked door and the theft of a low-value television and cash. The sentencing judge treated it as a category 1 burglary under the Burglary Offences Definitive Guideline (2011), finding greater harm and higher culpability. The appellant appealed with leave of the single judge, challenging immediate custody, categorisation, and the weight given to his rehabilitation, age and mental-health history.

1. Appeal allowed. The judge wrongly categorised the burglary as category 1. None of the guideline’s greater-harm indicators was present. The stolen items had no particular sentimental value. Cash in unopened birthday cards, the timing over Christmas, and the ordinary consequences of intrusion and theft did not establish greater harm. There was no ransacking or vandalism, since entry was through an unlocked door: [15].

2. The offence nevertheless involved higher culpability because the appellant ultimately accepted that he acted as part of a group. It therefore fell within category 2, for which the starting point was one year’s custody and the range was a high-level community order to two years’ custody: [16]-[17].

3. Having regard to offending while under the influence of drink or drugs and while on licence, an 18-month custodial starting point was appropriate. Proper weight for the appellant’s efforts to live drug-free, and the other matters in the pre-sentence report, reduced that figure to about 14 months. A 10 per cent reduction for the late guilty plea produced a term of 12 months: [18]-[20].

4. Rehabilitation prospects justified suspension in accordance with the probation officer’s recommendation. The substituted sentence was 12 months’ custody, suspended for 18 months, with a 35-day rehabilitation activity requirement and intensive supervision: [21]-[22].

5. As future guidance, if the suspended sentence were activated, the court should take account of custody already served for these offences under paragraphs 8(2)(b) and 8(3) of Schedule 12 to the Criminal Justice Act 2003: [23].

• Court of Appeal (Criminal Division): Allowed R v Gilmore and substituted a 12-month custodial sentence, suspended for 18 months: [2017] EWCA Crim 509.
• Sheffield Crown Court: Sentenced the appellant on 5 January 2017 to 27 months’ detention for burglary and one month concurrent for criminal damage.