Fearn, R v

For a qualifying repeat domestic burglar, the court must apply the burglary guideline before checking whether the resulting provisional sentence is below the statutory minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. If it is, the minimum must be imposed unless particular circumstances relating to the offence or offender make that unjust.

Ordinary mitigating circumstances cannot be treated as particular circumstances to avoid the statutory scheme. The lapse of time since qualifying offences is relevant but insufficient by itself. A non-custodial sentence based on rehabilitation requires a sound evidential basis for a realistic prospect of success.

The Attorney General referred the offender’s community order as unduly lenient under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty in the Crown Court at Bolton to dwelling burglary contrary to section 9(1)(b) of the Theft Act 1968, having entered the victim’s home, taken money and inflicted grievous bodily harm.

His two previous dwelling burglaries engaged the minimum-sentence regime in section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentencing judge found it unjust to impose the minimum sentence because of the unusual circumstances, time since earlier offences, efforts to address drug misuse, and the age of the qualifying offences. The central issue was whether those matters lawfully displaced the statutory minimum.

1. The reference was allowed. The community order was unduly lenient. It was quashed and replaced with 876 days’ imprisonment, subject to custody and qualifying-curfew credit.

2. Section 111 required the court first to apply the domestic burglary guideline in the ordinary way. It then had to check whether the provisional sentence fell below the statutory minimum. If so, the minimum had to be imposed unless particular circumstances relating to the offence or offender made that unjust. The court followed the approach stated in R v McInerney and Keating [2002] EWCA Crim 3003 and Leonard [2018] EWCA Crim 870.

3. The appropriate guideline sentence was somewhat below the statutory minimum, but higher than the sentence selected below. The burglary was at the top of category 2 or bottom of category 1 before aggravating features, including previous convictions, drug intoxication, night-time offending and a second participant. The offender had also received generous credit for a late guilty plea.

4. The offence was unusual because it was followed by grievous bodily harm rather than theft, but that did not reduce its seriousness. The offender entered the victim’s home and inflicted grievous bodily harm in anger after recovering the money. The elapsed time since earlier qualifying burglaries was relevant but did not itself make the minimum unjust: Attorney General’s Reference, R v Marland [2018] EWCA Crim 1770. Nor could normal mitigating circumstances be elevated into particular circumstances to circumvent the statute: Lucas [2011] EWCA Crim 2806.

5. The offender’s remorse, recent period without conviction and willingness to address drug misuse did not establish a realistic prospect of successful rehabilitation. He had not addressed the problem before arrest, committed the offence while under the influence of drugs, and continued to use drugs. Collectively, the factors did not make imposition of the minimum unjust.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and substituted 876 days’ imprisonment: [2019] EWCA Crim 1232.
• Crown Court at Bolton: On 25 April 2019, following a guilty plea to dwelling burglary, the offender received a two-year community order with drug rehabilitation, rehabilitation activity and unpaid-work requirements.