Wayne, R v

When sentencing domestic burglary, harm may principally be psychological. The absence of theft does not reduce harm where property damage is the means of causing fear and distress. Deliberately targeting premises for that purpose is higher culpability, even if the physical damage is limited.

A diagnosed mental disorder capable of reducing culpability must be considered in sentencing. It may nevertheless be outweighed by the seriousness and context of the offending. Pandemic prison conditions do not require a sentence reduction where the point was not advanced below and the actual conditions have improved.

The appellant pleaded guilty in the magistrates’ court to burglary, harassment and two offences of criminal damage arising from conduct towards his estranged wife. He was committed to the Crown Court at Portsmouth, where he received 32 months’ imprisonment for burglary, concurrent imprisonment for harassment, and a restraining order.

He appealed by leave of the single judge. He challenged the categorisation of the burglary and harassment under the Definitive Guidelines, the treatment of his mental illness and previous convictions, the restraining order, and the effect of pandemic conditions in custody.

1. Appeal dismissed. The judge was entitled to categorise the burglary as category 1. There was a sound evidential basis for finding that the victim’s bedroom had been ransacked and that a car tyre had been slashed. The burglary formed part of a campaign of harassment. Its purpose was to damage property so as to cause the victim fear and psychological harm. Accordingly, the fact that nothing was stolen and that the physical damage was relatively limited did not indicate lesser harm.

2. The property was deliberately targeted to cause fear and psychological harm. That was higher culpability within the Definitive Guideline. The four-year starting point, reduced to 32 months for the guilty plea, involved neither an error of principle nor a manifestly excessive sentence.

3. The appellant’s bipolar disorder was capable of being a countervailing factor and had to be considered, consistently with R v PS [2019] EWCA Crim 2286. Read fairly as a whole, the sentencing remarks showed that the judge had considered the diagnosis, troubled history and prison vulnerability before weighing them against the serious domestic-abuse context. The historical convictions were not irrelevant and were not treated as carrying undue weight.

4. The harassment was properly placed in category 1A. The appellant intended fear and distress, and the victim personal statement supported the finding of very serious distress. The concurrent eight-week sentence was not manifestly excessive. The restraining order was also justified; there was no present need for contact with the victim, subject to a future application to vary it.

5. The omission to address pandemic custody conditions was not an error because the point had not been raised in mitigation. In any event, the appellant’s current conditions had improved. The principles in R v Manning [2020] EWCA Crim 592 and R v Jones [2020] EWCA Crim 764 did not require a reduction.

• Court of Appeal (Criminal Division) — [2020] EWCA Crim 1303: appeal against sentence and restraining order dismissed.

• Crown Court at Portsmouth — on 8 July 2020, the appellant was sentenced to 32 months’ imprisonment for burglary, with a concurrent eight-week sentence for harassment, and made subject to a restraining order.

• West Sussex Magistrates’ Court — on 26 February 2020, following guilty pleas, the appellant was committed for sentence.