Sage, R v

For aggravated burglary based on entry as a trespasser with intent to inflict grievous bodily harm, the higher-culpability factor of a weapon being present on entry may substantially duplicate an element of the offence. It will not, without more, justify moving the offence to the highest sentencing category. Preparation which consists of locating an address and arriving armed does not necessarily amount to a significant degree of planning or organisation.

Conversely, where wounding with intent is committed using a weapon, that use must be given weight in categorising culpability. Totality requires avoidance of double counting, but must still produce just and proportionate punishment for the overall offending.

Following a jury trial at the Crown Court at Chelmsford, the offender was convicted of aggravated burglary, wounding with intent and possession of an offensive weapon. He had entered the victim's home while carrying an extendable baton, assaulted the victim, pursued him outside and struck him with the baton. The recorder imposed concurrent sentences totalling six years and six months' imprisonment.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The principal issues were the correct guideline categorisation of the aggravated-burglary and wounding offences, the effect of the weapon being present on entry, totality, and the legality of nine penalty points imposed for two motoring offences committed on the same occasion.

1. The reference was allowed. The total sentence of six years and six months was unduly lenient. The court substituted nine years' imprisonment on the aggravated-burglary count, increasing the total term to nine years.
2. For the aggravated burglary, the underlying burglary was under section 9(1)(a) of the Theft Act 1968: it was complete on entry as a trespasser with intent to inflict grievous bodily harm. The court accepted that an armed burglar is inherently more serious than one who acquires a weapon inside. Nevertheless, where the weapon was carried at entry and was the weapon required by section 10(1), treating that fact alone as the guideline factor of “weapon present on entry” involved substantial double counting. The court approved the analysis in Attorney General's Reference (R v Powell) [2018] 1 Cr App R (S) 40, but explained that it concerned a section 9(1)(b) burglary completed by the infliction of injury, not the section 9(1)(a) offence in this case.
3. The offender's efforts to locate the suspected thieves and his arrival armed did not amount to a significant degree of planning or organisation. Count 1 was therefore properly a category 2 offence involving greater harm but not higher culpability. Its serious previous convictions nevertheless required a sentence high within that range.
4. The wounding-with-intent offence was plainly category 2 because the offender used the baton to strike repeated blows. The recorder had given no weight to that serious feature. Although the three counts formed one incident and required a totality assessment, the original term did not impose just and proportionate punishment.
5. Under section 28(4) of the Road Traffic Offenders Act 1988, only the highest applicable number of penalty points could be attributed for the two offences committed on the same occasion. Nine points were unlawful. The court quashed the separate awards of three and six points and substituted eight points.

• Court of Appeal (Criminal Division): On an Attorney General's reference under section 36 of the Criminal Justice Act 1988, granted leave, held the total sentence unduly lenient, and substituted a total term of nine years' imprisonment.
• Crown Court at Chelmsford: Following conviction after jury trial, imposed concurrent sentences totalling six years and six months' imprisonment on 13 March 2019.