R v Murray Thomas

For a third-strike domestic burglar, the statutory minimum is a floor, not the starting point. The court must first assess the offence under the applicable Sentencing Council guideline, including aggravating and mitigating features, and then cross-check the resulting sentence against the minimum required by the Sentencing Act 2020. An extensive record may justify a sentence above the guideline range, even substantially above it, but the sentence must remain focused on the nature and circumstances of the present offence. The offender’s record must be assessed within that exercise rather than by simply doubling the statutory minimum.

The appellant pleaded guilty to three fraud offences and was convicted after trial of dwelling burglary. He was sentenced by His Honour Judge Feest to six years for burglary, with concurrent three-month terms for fraud, and ordered to pay £190 compensation.

As a third-strike burglar, section 314 of the Sentencing Act 2020 required at least three years’ custody unless particular circumstances made that unjust. The appeal challenged the overall sentence as manifestly excessive, arguing that the sentencing judge had treated the statutory minimum as the starting point and had given excessive weight to previous convictions. The central issue was how the guideline exercise interacted with the statutory minimum and extensive antecedents.

The Court of Appeal allowed the appeal. The six-year sentence was quashed and a sentence of four years’ imprisonment was substituted. The other elements of the sentence remained unchanged.

1. Under section 314 of the Sentencing Act 2020, the appellant, as a third-strike burglar convicted after trial, had to receive at least three years’ custody. No particular circumstances made that minimum unjust. The minimum was a statutory floor, not the starting point.
2. The proper approach was first to conduct the ordinary sentencing exercise by reference to the relevant Sentencing Council guideline and then to cross-check the resulting sentence against the statutory minimum. The court relied on R v Andrews [2012] EWCA Crim 2332 and R v Grady [2017] EWCA Crim 702. The sentence could be higher than the minimum and could exceed the guideline range where justified.
3. The burglary fell within Category 2B, with a starting point of 18 months and a range of six months to three years. The extensive record, including numerous dwelling-house burglaries and other offending, the nighttime entry, the impact on the victim and the appellant’s overall criminality were substantial aggravating features. Drug addiction and ADHD provided some mitigation.
4. A particularly appalling record can justify a sentence radically outside the guideline range. R v Marcantonio [2012] EWCA Crim 1279 and R v Brooke [2012] EWCA Crim 1642 illustrated that possibility, but each case turns on its own facts. Even where deterrence of a prolific recidivist requires a substantial increase, the court must keep the nature and circumstances of the present offence in view, as emphasised in R v Grady [2017] EWCA Crim 702.
5. The sentencing judge appeared to have treated the three-year minimum as a starting point and then doubled it because of the appellant’s record. That approach was erroneous. Four years properly reflected the aggravation, although it exceeded the Category 2B range. The reduction of the victim surcharge to nil was left undisturbed; under section 42(3) of the Sentencing Act 2020, that course was available only if the offender lacked sufficient means to pay. The compensation order was not challenged.

1. Court of Appeal (Criminal Division) — on 5 May 2023, allowed the appeal, quashed the six-year sentence and substituted four years’ imprisonment: [2023] EWCA Crim 543.
2. Crown Court — on 1 December 2022, sentenced the appellant to six years for dwelling burglary and concurrent three-month terms for three fraud offences, with a £190 compensation order.