Clarke & Anor, R. v

In sentencing for non-domestic burglary, multiple features of high culpability may justify an upward adjustment from the guideline starting point before further adjustment for antecedents. The sentence must nevertheless remain within the offence range unless departure would be contrary to the interests of justice under section 125 of the Coroners and Justice Act 2009.

A serious, planned commercial burglary with substantial loss and damage did not, before antecedents were considered, justify treatment as being at the very top of the most serious category. A sentence exceeding the five-year offence-range maximum was therefore impermissible. Where reduction of the custodial term requires a corresponding adjustment to a driving disqualification, sections 35A and 35B of the Road Traffic Offenders Act 1988 must be applied.

The appellants pleaded guilty to a planned burglary of a Co-Op store. They travelled in a taken car, equipped themselves with tools and masks, and stole cigarettes worth about £12,000. The burglary also caused substantial repair costs and lost takings. Bowers was also convicted of aggravated vehicle taking, dangerous driving and driving while disqualified.

After committal from the magistrates’ court, the Crown Court imposed four years’ imprisonment on each appellant for burglary. Bowers received concurrent terms for the related offences and a three-year driving disqualification, subject to an extended retest.

Both appellants appealed on the ground that their burglary sentences were manifestly excessive. The court had to decide whether the offence could properly attract a sentence above the non-domestic burglary offence range and, for Bowers, whether the ancillary disqualification required adjustment.

The appeals were allowed to a limited extent. The four-year burglary sentences were quashed and replaced with sentences of three years’ imprisonment.

1. The burglary was plainly within Category 1 of the relevant definitive guideline. It involved significant loss and multiple higher-culpability features: targeting of the premises, planning and premeditation, equipment for burglary, and group activity. Those features entitled the sentencing judge to move upwards from the two-year starting point before increasing the sentence for the appellants’ serious relevant antecedents.
2. However, the court held that the burglary, although serious, was not at the very top of the most serious category before antecedents were considered. The judge had also not addressed the requirement under section 125 of the Coroners and Justice Act 2009 to sentence within the offence range unless that would be contrary to the interests of justice. A sentence above the five-year maximum offence range was not justified.
3. The proper sentence after a trial was four years and six months’ imprisonment. Giving full credit for the guilty pleas produced a term of three years for each appellant. The court did not disturb the concurrent sentences imposed on Bowers for aggravated vehicle taking and dangerous driving.
4. The reduction of Bowers’ total custodial sentence required a reduction of his driving disqualification. Having regard to sections 35A and 35B of the Road Traffic Offenders Act 1988 and [2016] EWCA Crim 455, the court substituted a disqualification of two years and six months, until he passed an extended retest. It comprised 12 months for the aggravated vehicle taking, a six-month extension under section 35A, and a 12-month uplift under section 35B.

• Court of Appeal (Criminal Division): By [2019] EWCA Crim 2126, allowed both sentence appeals to the extent of reducing the burglary terms from four years to three years, and reduced Bowers’ driving disqualification.
• Crown Court: On 11 February 2019, imposed four years’ imprisonment on each appellant for burglary. It imposed concurrent sentences on Bowers for aggravated vehicle taking and dangerous driving, and disqualified him from driving for three years until an extended retest was passed.
• Magistrates’ court: The appellants entered early guilty pleas and were committed to the Crown Court for sentence.