R v Warren Heatley

When sentencing for non-domestic burglary, a judge may classify culpability as Category A where the facts show significant planning. The guideline start point may be increased where the seriousness of the offence requires it and the offending contains features not otherwise reflected, but reasons must be given and aggravating factors must not be counted twice. An unexplained elevated start point followed by a further aggravation uplift may make the sentence manifestly excessive. Disparity between co-offenders does not require equal sentences. Significant disparity is permissible where differences in role, age, plea timing, criminal record, suspended sentence breaches and guideline assessment explain it, judged with full knowledge of the circumstances.

The appellant pleaded guilty to non-domestic burglary and received 21 months’ imprisonment at Snaresbrook Crown Court. A consecutive seven-month term was activated under an earlier suspended sentence. He appealed, arguing that the burglary sentence was manifestly excessive because the judge had adopted an excessive starting point and because a co-defendant had received only three months.

The Court of Appeal granted leave. It considered the proper application of the Sentencing Council’s guideline, including culpability and harm categories, the treatment of aggravating features and guilty plea credit, and whether the difference between the co-defendants’ sentences offended the principle against unjustified disparity.

The Court of Appeal allowed the appeal to the extent of quashing the 21-month sentence for the burglary and substituting 14 months. The activated seven-month sentence remained consecutive, producing a total sentence of 21 months.

1. Guideline classification. The judge was entitled to place the burglary in Category 2A. The evidence, including the angle grinder, bolt cutters, hi-visibility clothing, vehicle and false number plates, supported a finding of a significant degree of planning. Category 2 harm was common ground and was not challenged.
2. Starting point and aggravation. The guideline start point was 12 months. A judge may begin above that figure where the seriousness of the offence requires an uplift for features not otherwise reflected in the sentencing exercise. The judge did not explain why he adopted a 21-month starting point before making a further seven-month uplift for aggravation. If the higher start point reflected harm, it was erroneous because the stolen goods were of medium value and were returned. If it reflected aggravating features, there was a concern about double-counting. The resulting sentence was manifestly excessive. The proper calculation was 12 months, increased by seven months for aggravation and reduced by 25 per cent for the guilty plea, giving 14 months.
3. Disparity. Applying the approach in R v Fawcett [1983] 5 Cr.App.R (S) 158, the difference between co-offenders’ sentences was not such as to offend right-minded members of the public or suggest an error in the administration of justice. Consistently with R v Berry [2016] 7 Cr.App.R (S) 392, significant disparity could be explained by material differences. The appellant had a different role at arrest, pleaded later, was older and more heavily convicted, and breached a more onerous suspended sentence. The magistrates’ Category 2B assessment of the co-defendant was an evaluative judgment and did not require a reduction in the appellant’s sentence.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 599, the appeal was allowed to the extent that the burglary sentence was quashed and replaced with 14 months’ imprisonment. The activated seven-month sentence remained consecutive.
• Snaresbrook Crown Court: On 8 December 2022, the appellant was sentenced to 21 months’ imprisonment for non-domestic burglary, with a seven-month suspended sentence activated consecutively.