R v Ionut Boghian

In sentencing for domestic burglary, the presence of occupants in the dwelling is a significant harm feature. It may justify category 1, or the higher end of category 2, even where no property is stolen and there is no injury or other impact. The confrontation with occupants may explain why property was not stolen and may outweigh category 3 factors. A further burglary committed shortly after sentence for an earlier burglary, while the offender is subject to a community order, is a significant aggravating feature. The fact that the offence occurred at night is not, without more, significant. A defendant who reoffends promptly after receiving a non-custodial opportunity cannot readily complain that immediate custody was imposed.

The appellant pleaded guilty to one count of burglary in the Magistrates' Court. The Crown Court at Harrow imposed 22 months' imprisonment after categorising the offence as category 1B under the offence-specific sentencing guideline.

The appellant appealed with leave. He challenged the harm categorisation, alleged double-counting of the fact that the burglary occurred at night, argued that insufficient weight had been given to mitigation, and contended that the sentence should have been suspended. The Court of Appeal also considered the recorder's failure to revoke the existing community order or re-sentence the appellant for an earlier burglary.

1. Disposition. The appeal was dismissed. The Court of Appeal revoked the existing community order to avoid misunderstanding.
2. The recorder should have considered the overall seriousness of the appellant's offending behaviour, including the earlier burglary, in accordance with the sentencing guideline on totality. The appellant was fortunate that the recorder had not re-sentenced him for that offence.
3. The recorder was entitled to place the present burglary in category 1 for harm, or at the higher end of category 2. A significant feature of domestic burglary is violation of the occupant's personal space. Here the occupants were present and had to confront the appellant. The confrontation, rather than any decision by the appellant, resulted in no property being stolen. The presence of the occupants therefore outweighed the category 3 factors.
4. The reference to the offence having been committed at night did not justify interference. The recorder had used the circumstance when considering culpability because the appellant must have expected people to be in the flat. In any event, committing the offence at night was not itself a significant factor when compared with the occupants' presence and the existing community sentence.
5. The appellant committed the burglary only nine days after receiving a community order for another burglary and before doing anything of substance to comply with it. That was a significant aggravating factor which far outweighed the limited mitigation. The recorder was entitled to find little mitigation. The appellant's efforts to address his drug addiction did not prevent the offending.
6. The appellant could not complain that immediate custody was imposed. He had recently been given a non-custodial opportunity and had responded by committing another domestic burglary before complying materially with the community order.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 173, dismissed the appeal against sentence and revoked the community order.
• Crown Court at Harrow: Imposed 22 months' imprisonment on 16 October 2024 for one count of burglary.