R v Dean Anthony Swinbourne

In a domestic-burglary case subject to a mandatory minimum term, sentence may be deferred only where the court can make clear that compliance with the specified conditions will result in a non-custodial disposal. The court must identify exceptional circumstances either immediately or as a consequence of compliance. Deferral is sparingly used, and a community order will generally be the more appropriate non-custodial option.

Exceptional circumstances require that the minimum term would produce an arbitrary and disproportionate sentence. Their cumulative effect may be exceptional. When applying the 80 per cent statutory floor after guilty-plea credit under the Sentencing Act 2020, the court must not inflate the pre-credit sentence beyond the justified guideline range. A calculation which does so produces a manifestly excessive sentence.

The appellant pleaded guilty to a domestic burglary and asked for seven further domestic burglaries to be taken into consideration. The sentencing court imposed 38 months’ imprisonment after refusing to defer sentence to allow his participation in the C3 rehabilitation programme.

He appealed on three grounds. He challenged the refusal to defer sentence, contended that his co-operation and proposed programme participation amounted to exceptional circumstances under section 314, and submitted that the sentence was manifestly excessive because of an erroneous approach to mitigation and guilty-plea credit.

Appeal allowed in part. The court quashed the sentence of three years and two months and substituted 876 days’ imprisonment.

1. A deferred sentence is appropriate only where the court can state clearly what sentence will follow if the offender complies with the specified conditions, and that sentence is other than immediate custody. A court may defer sentence in a case subject to section 314 if exceptional circumstances exist at the date of deferment or will arise on compliance. The sentencing judge had not adopted a rule that deferral was unavailable in every minimum-term case. He was entitled to regard deferral as inappropriate on these facts.
2. The exceptional-circumstances test introduced for domestic burglary was governed by the principles summarised in R v Nancarrow [2019] EWCA Crim 470. The minimum term is deterrent. It may be disapplied only where its imposition would be arbitrary and disproportionate, and the relevant circumstances must be truly exceptional. Their collective effect may meet that standard. The judge was entitled to find that the appellant’s co-operation and admission to the C3 programme, though unusual and strongly mitigating, were not exceptional circumstances.
3. The judge’s own reasoning placed the offence towards, but not beyond, the top of the guideline range before substantial mitigation and guilty-plea credit. A pre-credit term of 57 months could not be reconciled with that reasoning. The resulting 38-month sentence was therefore manifestly excessive. Applying the 80 per cent floor required by section 314 of the Sentencing Act 2020, the correct substituted sentence was 876 days’ imprisonment.

• Court of Appeal (Criminal Division) In [2023] EWCA Crim 906, allowed the appeal to the extent of quashing the 38-month sentence and substituting 876 days’ imprisonment.
• Sentencing court On 7 February 2023, imposed three years and two months’ imprisonment for domestic burglary after declining to defer sentence.