Fisher, R. v

MR JUSTICE GRIFFITH WILLIAMS: On 16th July 2007 George Fisher pleaded guilty in the Magistrates' Court to offences of burglary, aggravated vehicle taking, driving whilst disqualified and driving without insurance. He was committed for sentence to the Crown Court at Snaresbrook where, on 28th August 2007, he was made the subject of a 12 month community order with supervision and drug rehabilitation requirements. His response to that order was, to quote the breach probation report, "very chaotic". He failed to attend his first appointment and a warning letter was sent. Following further failed appointments a second warning letter was sent on 5th September 2007. In all he attended 15 appointments and missed 17. On some occasions when he attended he had used drugs prior to attending and was unable to comply with supervision. On one occasion he even fell asleep.

He appeared on 7th November 2007 before Mr Recorder Baughan QC for breaching the order and the Recorder sentenced him to two years' imprisonment for the offence of burglary, to nine months' imprisonment consecutive for the offence of aggravated vehicle taking and to three months' imprisonment concurrent for the offence of driving whilst disqualified. There was no separate penalty for the offence of driving without insurance. He was disqualified from driving for three years and ordered to take an extended driving test. His application for leave to appeal against the total sentence of two years and nine months' imprisonment has been referred to the full court by the Registrar.

The facts can be very briefly stated. At about 9 or 10 o'clock in the morning of 21st May 2007 the applicant was seen on closed circuit television entering the rear of the business premises of AFS Security Limited on the Barking Road. He entered through doors and once inside he looked around and walked out with two power drills together valued at £600.

On 28th May he took a blue Toyota motorcar belonging to a Mr Laurence. At the time the applicant was living at the same address as Mr Laurence and the applicant helped himself to the keys to the car which had been left parked outside. The following day the applicant was seen by Mr Laurence driving the car. When Mr Laurence tried to stop him he drove at him causing him to jump out of the way. The applicant then reversed at speed and hit a BMW motorcar. The damage caused was less than £5,000 and so the offence was accordingly a summary only offence punishable in the Magistrates' Court with a maximum sentence of six months' imprisonment.

The applicant is 39 years old. He has a bad criminal record with 42 previous convictions for offences of dishonesty. He has many convictions for burglary and aggravated vehicle taking. He has served a number of prison sentences. They include a total of three years' imprisonment in 1997 for an offence of dwelling-house burglary and an offence of aggravated vehicle taking, and two years' imprisonment in 2003 for an offence of going equipped for theft.

On the applicant's behalf it is submitted by Mr Kennedy that the burglary offence was committed during daylight hours, no force was used to gain access, it was an opportunistic offence and the property stolen was of relatively low value.

Mr Kennedy invited our attention to three particular decisions of this court, decisions which we have read. But previous decisions on their own particular facts are of limited assistance, particularly when the applicant's offending has to be considered in the context of his criminal record. He steals to fund his drug habit. He has been given every chance in the past to address that habit and he clearly has not cooperated. In the view of this court the time has come when the public have to be protected from his offending. The sentencing judge took into account the fact that the applicant had complied to some extent with the terms of the community order, but from the summary of the extent of that compliance, to which we referred earlier in this judgment, it is clear that there had to be little by way of discount in that regard. We are satisfied that the sentence of two years' imprisonment was not manifestly excessive.

The offence of aggravated vehicle taking properly attracted a consecutive sentence. The only issue is the length of that sentence. The fact that the sentence of nine months' imprisonment was unlawful unhappily went unnoticed in the Crown Court and in counsel's advice and grounds of appeal. The maximum sentence, as we indicated earlier, is one of six months' imprisonment. We observe the applicant has four previous convictions of offences of aggravated vehicle taking, the last in February 2007, and so only a matter of months before he committed this present offence. We have concluded that on the facts he had little alternative but to plead guilty and so therefore the discount for his guilty plea is a limited one. In the view of this court the appropriate sentence for the offence of aggravated vehicle taking is one of five months' imprisonment.

We grant leave to appeal and we quash the sentence of nine months' imprisonment for the offence of aggravated vehicle taking and substitute for it a sentence of five months' imprisonment. That sentence will be served consecutively to the two year sentence for the offence of burglary, producing a total sentence of two years and five months' imprisonment. To that limited extent and that limited extent only this appeal succeeds.