Ellis, R v

LORD JUSTICE STANLEY BURNTON: This is a renewed application for leave to appeal against a sentence imposed on Gavin Lee Ellis, a young man aged 28, who, on 5 August 2008 at Guildford Crown Court, pleaded guilty to an offence of aggravated burglary and agreed that one other offence of burglary was to be taken into consideration, and who, on 5 September 2008, was sentenced by His Honour Judge Critchlow to seven years' imprisonment.

The facts of the very nasty aggravated burglary involved in the index offence are these. The complainants were Jason Boyce and his girlfriend, Leanne Oliver, aged 21 and 20 respectively. Boyce lived with his mother and his eight year old brother in South Godstone.

Just before 8.00 am on 20 May 2007 Boyce was at home in bed with Miss Oliver. His eight year old brother was asleep in another bedroom. There was a third empty bedroom of his mother. Boyce and Miss Oliver were awoken by two men who came into the bedroom. Miss Oliver woke to see a man, who is described in the summary as male 1, wearing a balaclava and holding what she described as a meat cleaver. The second man, who according to the Crown was the applicant and which he admits, did not have his face covered. He stood over Boyce holding a long thin carving knife. Both men had been told there might be money in the premises. They demanded £30,000. Boyce said he did not have that kind of money. Male 1 said, "Show me where the safe is." Boyce had a small safe next to his bed which contained items of sentimental value. He was told to open it and did so.

Male 1 then left the room, leaving the applicant with Boyce and Miss Oliver, who at that stage remained in the bed. Male 1 went into Boyce's mother's bedroom and took from there a tin which contained a small amount of cash and jewellery. He brought it back to the bedroom where the others were. He said something to the effect of that was not what they had come for, implying that there was more for them to take away. Male 1 left the room again and returned to the room with a safe that he found in the airing cupboard. The safe belonged to Boyce's sister who did not live at the address. He threw the safe on the bed and demanded that Boyce open it. Boyce stated it did not belong to him and he did not know the code. He offered to telephone his sister to find out the code but male 1 told him in a threatening way not to be so stupid and that he would not be telephoning anyone.

Male 1 left the room again. The applicant then demanded that Boyce remove the wires to his PlayStation 3 games console so he could take. Boyce got out of bed and did as he was told. The applicant emptied a sports bag and told Boyce to put the PlayStation and some games into the bag which he did.

Male 1 returned. At some stage there were threats made to harm Boyce's eight year old brother. They were not made directly to the boy who was still in his bedroom but to Boyce who was told that if he did not co-operate and give them the money they were after they would effectively take it out on the younger brother. Male 1 (that is to say, not the applicant) then said, "No, no, don't do that. I have children of my own. We're not going to touch the young boy."

Throughout what took place the eight year old boy was in his own bedroom, appearing be to asleep. He had no knowledge of what was going on, so, although there was a threat, it was not in any way implemented. However, the threat having been made, Boyce said that there was a safe in the loft. Boyce was told to retrieve the safe. The applicant and male 1 then left with the safes, which were assumed to be small portable, mobile telephones that belonged to everyone in the house money and jewellery. It was thought that about £2,000 in cash was stolen but there was nothing from the complainants to indicate the amount of money or the loss.

The matter was reported to the police. The applicant's fingerprint was recovered and on 3 June 2008 he was arrested. On interview he made no comment. In an identification parade he was identified by both Boyce and Miss Oliver. Male 1, the other offender, was never identified or arrested.

In her victim impact statement Miss Oliver said she had permanent feelings of fear, especially if she was in the dark. She was not happy staying at the Boyce's house anymore and as a result the relationship had suffered. In his statement Boyce said he could not sleep and he had been very worried and scared since.

There was a basis of plea in this case to this effect.

1. At the material time the applicant had a serious addiction to crack cocaine. He was in debt to his dealer to the extent of £500 to £600. His dealers was pressurising him to repay the debt. He could not.

2. In order to pay the debt [he] was instructed to commit the aggravated burglary with the other man (someone he did not know). He believed there would be adverse consequences for him or his family if he did not do as he was instructed. He was promised an additional £500 if successful.

3. He and the other man were told that Jason Boyce's brother-in-law was involved in drug dealing and that there would be about £29,000 on the premises. He had never met Jason Boyce before.

4. The only person that he expected to be in the premises was Jason Boyce. He would never have harmed anyone in those premises, least of all the eight year old boy (he has a seven year old daughter of his own). They shut the eight year old's door during the incident. He never woke up.

5. He received £500 from the proceeds and his debt was cleared.

The offence taken into consideration was a domestic burglary in Warlingham, Surrey. The applicant admitted having stolen a laptop computer, DVD player, a mobile telephone, items of jewellery and cash. The value of the property taken was not known but clearly they included items of value. £500 damage was caused.

The applicant is heavily convicted. He has 33 previous convictions. The majority are for driving offences and failure to surrender but they also include four other offences of burglary (all residential), one of attempted burglary (not residential) and one of handling stolen goods.

There was a pre-sentence report, in the course of which the applicant stated, as he had by the basis of plea, that the offence resulted from the duress of a drug dealer to whom he owed money. He admitted offending to fund his drug use.

The probation officer stated that his offending history indicated deficits with problem solving and consequential thinking and concluded there was a medium risk of reoffending. There was a risk of harm. He had not previously carried weapons or directly approached victims, but this was a step up from his previous offences.

There is a good prison report. There is a letter from the applicant's partner, supporting his story that he was coerced into committing the offence, and a supporting letter from her mother. We have taken those into account.

The authorities on violent domestic burglary or robbery in the home were recently reviewed by this court, differently constituted, in Attorney General's Reference Nos 38, 39 and 40 of 2007 (Crummock, Stell and Campbell). The judgment of the court in that case was referred to, and implicitly approved, by this court in the recent case of Saw. In that case there was a violent robbery in a home, violence was actually caused and injuries suffered by the victims. Indeed one of them died as a result of the offence.

Having reviewed the previous authorities on the level of sentencing in cases such as the present, the court said in paragraph 30:

We do not consider it helpful to measure in minute detail the comparative gravity of the offence in that case and that in the present case. The victims in the present case were understandably terrified by the weapons brandished by the applicant and the second man and whatever was said by them at the time the victims must have thought there was an obvious risk they would be used otherwise there would be no reason for the burglars to have them. There is the further aggravating factor of the threat to injury a young boy. We accept that the applicant was an unwilling offender on this occasion, but that, in our judgment, does not justify a substantial decrease in a sentence otherwise appropriate.

He initially denied the offence but is entitled to credit for his plea of guilty. The other mitigating factor is the fact that in the end no violence was inflicted on anyone; but that may well be a reflection of the weapons used and the fear of the victims that they might be used.

Having said all of that, we nonetheless consider that the sentence of seven years was on the authority that we have referred to somewhat excessive. We consider that the appropriate sentence in this case is one of six years' imprisonment. In those circumstances, we grant leave to appeal. Unless within seven days the applicant notifies the court that he wishes the matter to be considered again, the sentence of seven years will be quashed and replaced with a sentence of six years' imprisonment. The applicant will be aware that any further representations are unlikely to be considered to be meritorious or effective. To the extent therefore the appeal, as it now is, succeeds.

MR HALLOWES: In those circumstances may I ask for a representation order?

LORD JUSTICE STANLEY BURNTON: Certainly.

MR HALLOWES: Grateful.

LORD JUSTICE STANLEY BURNTON: Thank you.