R v Kyle McMullen

For a third striker under the Sentencing Code, the statutory minimum must be applied unless exceptional circumstances justify another disposal. Where a delayed offence is closely connected with offences already sentenced, totality requires consideration of the outcome that would have followed had the offences been sentenced together and of the sentence already imposed. Unreasonable prosecutorial delay may be taken into account. A conditional discharge may therefore be lawful, even in an unusual case involving a recidivist burglar, where it provides a proportionate disposal and preserves scope for punishment on reoffending. The Court of Appeal will not interfere merely because the disposal falls outside the guideline’s custodial ranges if it is a reasonable exercise of sentencing discretion. Leave to refer the sentence was refused.

The Solicitor General referred the sentence under s.36 of the Criminal Justice Act 1988. The offender, a recidivist burglar and third striker under section 314 of the Sentencing Code, committed a dwelling-house burglary on 31 December 2022. He was sentenced only in May 2025, after receiving substantial concurrent custodial sentences for related burglaries in June 2024. The sentencing judge found exceptional circumstances, including unreasonable charging delay and the effect of the existing sentence, and imposed a three-year conditional discharge. The issues were whether that disposal was unduly lenient and whether the Court should intervene.

Disposition

The Court of Appeal refused leave to refer the sentence. The conditional discharge was unconventional but reasonable and within the sentencing judge’s discretion.

1. The court accepted that the offender was a third striker under section 314 of the Sentencing Code. The statutory framework required at least three years’ custody unless exceptional circumstances relating to the offence or offender justified another disposal. The guilty plea reduction was subject to the statutory 80 per cent floor. The judge had correctly categorised the burglary and treated the previous convictions as a statutory aggravating factor.
2. The delay between the forensic report and charging was unreasonable and could properly be taken into account. The court accepted that the judge had discretion to make an adjustment for that delay.
3. The offences formed part of the same series and were materially similar. Totality required consideration of what the overall sentence would have been if the offences had been sentenced together, with proper regard to the sentence already imposed. Any further custodial sentence could have been made concurrent or consecutive, but the exercise was not formulaic.
4. On that approach, sentencing the index offence with the other burglaries would have produced no change, or at most a minimal upward adjustment, to the overall outcome. The Solicitor General identified no material matter that the judge had omitted or wrongly taken into account.
5. It was therefore open to the judge to conclude that exceptional circumstances justified a conditional discharge. Imposing another term of imprisonment would have offered no obvious advantage. The disposal was a realistic and proportionate attempt to preserve additional sentencing consequences if the offender reoffended.

• Court of Appeal (Criminal Division): considered the Attorney General’s reference under s.36 of the Criminal Justice Act 1988 and refused leave to refer the sentence.
• Crown Court at Inner London: on 19 May 2025, HHJ Reid imposed a three-year conditional discharge for the burglary, having found exceptional circumstances under section 314 of the Sentencing Code.