Smalley, R. v

THE VICE PRESIDENT: On 19th October 2006 in the Crown Court at Derby, this appellant pleaded guilty to one offence of burglary and asked for two offences of burglary to be taken into consideration. He was sentenced by the Recorder to a community order with a two year supervision requirement, a six month drug rehabilitation requirement and attendance on the Offender Substance Abuse Programme. Unfortunately, he failed to take advantage of the chance that he was given. He failed to attend an appointment with an organisation, Addaction, on 30th October 2006 and a warning letter was issued. He then failed to attend an appointment on 1st November 2006. In those circumstances, not surprisingly, breach proceedings were commenced and the matter came back before the Crown Court. That was not the only problem he faced. As a result of being ordered to come back before the Crown Court, he should have attended on 9th November 2006 but failed to do so, and then again on 18th December 2006, when, again, he failed to do so.

He was eventually arrested and appeared before the Crown Court at Derby on 2nd February 2007, where, before His Honour Judge Mitchell, he was sentenced to two years and six months' detention in a young offender institution in respect of the offence of burglary. The community order was revoked. For the bail offences he received one month's detention for the first offence and two months' detention to be served consecutively for the second offence. Such sentences were to be concurrent to the two and a half year sentence imposed in relation to the burglary. The judge ordered under section 240 of the Criminal Justice Act 2003 that the 45 days that he had spent in custody on remand should not count towards the sentence.

He appeals against sentence by leave of the single judge.

The facts of the burglary with which he was charged can be shortly stated. It was a burglary on 17th August 2006. He forced entry into a dwelling house in Rowditch Avenue by a back door and stole a PlayStation, games and a wallet to the value of approximately £300.

The two offences which he asked to be taken into consideration had both been committed on 16th August 2006, when the appellant burgled, firstly, a property in Tufnell Gardens in Mackworth. The premises were occupied by an elderly couple. He stole 26 DVDs to a value of £200. Secondly, he broke into a property at Muswell Road. The householder was awakened by lights being switched on and off. The appellant went into his bedroom. When the appellant realised the householder was awake, he fled down the stairs and out of the house. A mobile phone and a wallet to the value of £100 was stolen.

The offences came to light, in the sense of being brought home to this appellant, because the appellant took the stolen items to a firm called Cash Generators, which required him to fill in a form and took a digital photograph of him. The police were called. He was arrested, interviewed and admitted the offences.

The judge, not surprisingly, when sentencing him indicated that the only sentence that could be imposed that day was one of detention. With that we entirely agree. He stated in justification of the sentence of two and a half years' detention that the appellant had to accept that he had been given a chance, which he had failed to take, and he had had previous chances as a result of convictions for theft, burglary and handling for which he had avoided detention. The only custodial sentence that he had received on any of those occasions was a sentence of two months in a young offender institution.

The judge when dealing with the question of the order under section 240 of the Criminal Justice Act 2003 effectively said that he was not going to give the appellant credit for that because of the Bail Act offences. That is, in our view, a somewhat circular and illogical argument. The right order where there are Bail Act offences should be to impose a consecutive sentence in respect of the Bail Act offences, and, save in exceptional circumstances, the usual order should be made under section 240 as to allowing credit for the period spent on remand.

But returning to the substantial sentence of two and a half years' detention. Having considered the matter in the light of the immediate admissions of his guilt by the appellant, it seems to us that the sentence of two and a half years' detention was, indeed, excessive. The appropriate sentence, bearing in mind that this appellant is 20 years of age, is one of 18 months' detention. The sentences for the Bail Act offences will stand, but they will be ordered to be served consecutively to that sentence of 18 months' detention and the court orders that the 45 days served on remand shall count towards the serving of that sentence.