Buckland, R. v

For the statutory minimum sentence for a qualifying third domestic burglary to be displaced, the sentencing court must identify particular circumstances relating to the offence or offender which make the minimum term unjust in all the circumstances. A general assessment that the minimum is inappropriate does not apply the statutory test.

The court should first determine the guideline sentence, including relevant offences taken into consideration, then cross-check the statutory minimum. Under Criminal Justice Act 2003, section 144(2), guilty-plea credit cannot reduce a sentence imposed under section 111 below 80 per cent of the specified minimum.

The Solicitor General referred the offender’s sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient.

At Luton Crown Court, the offender had pleaded guilty to two dwelling burglaries. Two further burglary-related offences were taken into consideration. Although the Recorder identified the applicable three-year minimum sentence for a qualifying third domestic burglary, he imposed concurrent two-year terms suspended for two years, with treatment and rehabilitation requirements.

The central issue was whether the Recorder had lawfully departed from the statutory minimum and whether the suspended sentence was unduly lenient.

1. The court granted leave and held that the sentence was unduly lenient. It substituted concurrent terms of 32 months’ immediate imprisonment for the two suspended sentences.

2. Section 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 required an appropriate custodial term of at least three years unless particular circumstances relating to the offences or offender made that result unjust in all the circumstances. The Recorder did not address that statutory test or identify circumstances making the minimum unjust. His broader view that applying it was inappropriate was legally insufficient. In light of the offender’s antecedents, alcohol and drug dependency could not make the minimum unjust.

3. The proper approach, explained by R v Andrews [2012] EWCA Crim 2332 and R v Silvera [2013] EWCA Crim 1764, was to calculate the guideline sentence first and then cross-check the statutory minimum. The court treated the dwelling burglary as greater harm and higher culpability. The offender had gone equipped, the occupier was present, and the extensive record, night-time offending, intoxication, second burglary and offences taken into consideration required an upward adjustment.

4. The appropriate sentence on the lead count exceeded four years before plea credit. Section 144(2) of the Criminal Justice Act 2003 permitted full credit for the guilty plea, but prohibited a reduction below 80 per cent of the specified minimum. The resulting 32-month term could not be suspended. The offender was directed to surrender to the police station that afternoon.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the suspended sentence unduly lenient and substituted 32 months’ immediate imprisonment.
• Crown Court at Luton: On 25 January 2019, the Recorder imposed concurrent two-year terms of imprisonment, suspended for two years, with treatment and rehabilitation requirements.