Gray, R. v

LORD JUSTICE THOMAS: The appellant in this matter is a 32-year-old man. He has a long record of convictions, largely for offences of dishonesty. The convictions material to this appeal are a particularly large number of convictions for burglary of dwelling-houses. On 21st April 2006 the appellant attempted to enter a dwelling-house in Heywood. He left blood on the premises which was matched to his DNA. A little later on 8th May 2006 the appellant broke into a house, again in Heywood, while the occupants were asleep. He stole a purse which contained £120, some bank and credit cards. The footprints that he left on the scene were matched to his. The aggravating feature of that burglary was that the occupants were awakened to hear him in the house and quite plainly they must have suffered considerable alarm and distress.

The appellant pleaded guilty at Brighton Crown Court on 17th October 2006, which the learned judge observed was the first available opportunity. He asked for 13 other offences of burglary to be taken into consideration.

On 19th October 2006 a sentencing hearing commenced before the judge and there is no real controversy about the approach the judge took to looking at the overall sentence that would have been passed had the appellant in this case contested the matter and there had been a trial. The judge pointed to the fact that the burglary on 8th May 2006 was a particularly serious one and emphasised the fright it had caused to the occupants. Secondly, he pointed to the long and appalling criminal record of the appellant, including eight previous appearances before the court for dwelling house burglaries. He also referred to the appellant's addiction to heroin for a long period of time since an early age and what might be described as an unhappy childhood and life. He also referred to general background circumstances.

In the circumstances, by reason of the provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, and by reason of the dates and numbers of previous burglaries, the provisions of that section were engaged and the minimum term to which the judge had to sentence the appellant was a minimum term of three years. Subsection (2) provides that the court shall impose an appropriate custodial sentence for a term of at least three years except where the court is of the opinion that particular circumstances which relate to any of the offences or to the offender would make it unjust to do so in all the circumstances.

The judge expressed the view that after a trial the total sentence would have been one of five years' imprisonment for the burglary and three years for the attempted burglary, those sentences to run concurrently. He reached that view taking into account the other matters that the appellant had asked to be taken into consideration. Again, none of that is controversial.

The judge then had to consider the effect of section 144 of the Criminal Justice Act 2005, which provides as follows:

The judge considered that the Act required him to apply the provisions in the following way: that a 20 per cent discount should be applied to the first three years, which he took to be a term that the appellant had to serve as the minimum term, but then he went on to consider that he could apply a discount of 30 per cent to the balance of the notional term of five years. On that basis he sentenced the appellant to a period of three years and 229 days for the burglary and a concurrent sentence of two years for the attempted burglary.

Before the judge, and again in grounds of appeal submitted to this court, it was contended the judge was wrong. It was submitted that he should have applied the appropriate discount to the whole term of five years, provided that did not result in the sentence dropping below 80 per cent of the minimum term of three years -- eighty per cent of three years being approximately 29 months (without going into the precise number of days).

As the judge in this case intended a discount of 30 per cent, if that was applied to the notional term that it is not disputed the judge had in mind then the sentence would have been one of 40 months and not one of three years and 229 days which was the sentence the judge felt he had to pass for the reasons that we have set out. There was nothing to prevent the judge in passing that sentence because it was in excess of the period of approximately 29 months which was the term the judge could not drop below by reason of the statutory provisions to which we have referred.

In the circumstances, the learned Registrar referred this matter directly to this court so a ruling could be made. It is clear to us that the submission that has been made, very attractively and shortly in submissions to us and very briefly in oral argument by Mr Hamilton, is well-founded. It is, in our judgment, clear that subsection (2) of section 144 prevents a court from imposing a sentence which would be less than 80 per cent of the sentence specified in section 110(2) of the Powers of Criminal Courts (Sentencing) Act or less than 80 per cent of three years in the case of section 111(2). Provided the sentence is greater than that amount, then a court is entitled to apply the provisions of section 144(1) in the way it thinks appropriate. In this case, the judge considered that a discount of 30 per cent was appropriate. Therefore, there was nothing to prevent him, once he had taken the starting point of five years, to have given a discount of 30 per cent applied to that period.

The judge referred to the fact there was no authority on this point. In one sense that is correct, but the way in which we consider that the approach should be made to the inter-relationship to these two subsections was plainly the approach taken by this court in Hickson [2001] EWCA Crim. 1595, a case which is helpfully referred to in Blackstone at paragraph E6.1 and E6.3. Although the point was not directly in issue, it is impossible to read the judgment of the court in that case without coming to the view that the approach we have set out was indeed the approach that must be followed to these statutory provisions.

In the circumstances, therefore, we have come to the clear view that we ought to give effect to what the judge would have done had he not thought his discretion was circumscribed by the statutory regime in the way it was. We therefore grant leave to appeal and allow this appeal to the extent that we quash the sentence and substitute one of 40 months' imprisonment for the offence of burglary. To that extent only this appeal is allowed.