R v Mark Burke

On an appeal against sentence, the Court of Appeal may redo a fundamentally flawed sentencing exercise, provided the substituted sentence is no higher overall. Similar thefts should ordinarily attract concurrent sentences where they represent similar offending. Persistent breaches of a Criminal Behaviour Order may justify high culpability and harm categories, but consecutive terms for related breaches risk double-counting persistence. Totality requires the overall sentence to reflect the relative seriousness of the offences. Theft involving actual loss may be more serious than the related breach offences. Correct guideline categorisation, the guilty-plea reduction, concurrent terms and the activated suspended sentence reduced the total custodial term.

The appellant appealed against a 42-month sentence imposed by the Crown Court at Southwark for two thefts, possession of heroin, two breaches of a 10-year Criminal Behaviour Order and activation of part of an earlier suspended sentence. The appeal challenged the consecutive 15-month terms for the breaches as manifestly excessive and alleged insufficient regard to totality. The Court also identified wrong guideline categorisation for the thefts, confused chronology and calculation, and sentencing remarks which made the exercise fundamentally flawed. The central issue was the proper categorisation and structuring of the sentences, including concurrency, totality and the guilty-plea reduction.

1. Disposition. The 42-month sentence was manifestly excessive and the sentencing exercise was fundamentally flawed. The Court of Appeal was therefore required to resentence the appellant, subject to the limitation that the substituted overall sentence could not exceed the sentence imposed below.
2. The thefts. The judge had used the wrong guideline by failing to apply the guideline for theft from a store. Both thefts fell within culpability category A because the appellant was subject to a wide-ranging Criminal Behaviour Order imposed in the context of repeated shop thefts. The £900 theft was at the top of harm category 2 but could fairly be raised to category 1 in light of the appellant’s numerous previous convictions. The £2,000 theft was within category 1 by value. Before the guilty-plea reduction, each theft warranted 30 months. After the one-third reduction, each warranted 20 months, but the terms were to run concurrently because the thefts were very similar.
3. The breaches. The breaches were properly placed in category A1. Culpability category A was justified by persistent breaches. Harm category 1 was justified by the continuing risk of serious criminal and anti-social behaviour and the high harm caused to West End store owners. Nevertheless, the two breach sentences were to be concurrent, since consecutive terms risked double-counting the persistent nature of the offending. After totality and the guilty-plea reduction, the concurrent term for the breaches was 12 months, consecutive to the theft sentences.
4. Totality and final sentence. The thefts were more serious than the simple breaches because they involved both breach of the order and actual loss. The three-month term for heroin possession remained concurrent. The two-month activated suspended sentence was added. The theft sentences were quashed and replaced by concurrent 20-month terms, the breach sentences by concurrent 12-month terms consecutive to the thefts, and the overall sentence was reduced to 34 months. The appeal was allowed.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 1454, allowed the appeal against sentence, quashed the 42-month term and substituted an overall sentence of 34 months.
• Crown Court at Southwark: On 13 February 2025, HHJ Griffiths sentenced the appellant to 42 months’ imprisonment.