Flack, R. v

1. MR JUSTICE SAUNDERS: This appellant appeals against a sentence of 29 months' imprisonment imposed for an offence of burglary of a dwelling-house at Snaresbrook Crown Court on 17th September 2012. He appeals by leave of the single judge. He had previously pleaded guilty on 10th September but the case had been adjourned for the trial of the issue as to whether or not the premises broken into by the appellant was indeed a dwelling. The judge concluded that it was. One of the grounds of appeal in this case is that the judge's decision to have a Newton hearing was wrong.

2. The issue as to whether the property was a dwelling-house was important as if proved against the appellant that it was and he did not dispute entering the property and stealing from there, he became subject to the minimum sentence provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. If the provisions would come into effect on conviction, then the offence was indictable only and had to be sent to the Crown Court by the magistrates.

3. The issue as to whether the property was a dwelling was raised before the magistrates but on our present view once the charge included the averment that the property was a dwelling, which it did, the magistrates did not have jurisdiction and they properly sent the case to the Crown Court. We emphasise that this matter has not been fully argued before us and the prosecution has suggested that the magistrates may have some power to inquire into the matter, but as we say for the present we are doubtful as to whether such a power exists. In any event, the matter was sent as an indictable only offence to the Crown Court. At the Crown Court the appellant pleaded guilty to a charge including the averment that the burglary was of a dwelling, but the case was put off for trial of an issue which ultimately took place.

4. We say at once that in our judgment it was wrong to have a trial of an issue. If it was not admitted that the burglary was of a dwelling-house, that should have been determined by a jury. Under section 9(3) of the Theft Act the maximum sentence for burglary of a dwelling-house is 14 years, whereas for any other offence of burglary it is 10 years. Applying the decision of the House of Lords in Courtie[1984] AC 463 to that situation, a count alleging burglary of a dwelling-house should significantly aver that the property was a dwelling-house and that allegation should be on a separate count on the indictment to a non-dwelling-house burglary. That principle has been applied to cases concerning dwelling-house burglaries by this court in the case of R v Gary miller[2010] EWCA Crim. 809. If the appellant did not admit that the building was a dwelling then the defendant should have entered a not guilty plea, there should have been two alternative counts on the indictment, one of which included the averment that the property was a dwelling-house and one of which did not, and the jury would have to decide. As we have already said, that did not happen in this case. The Crown thought the appellant pleaded guilty to burglary of a dwelling-house and accordingly that is what he had to be sentenced for.

5. The result of the Newton hearing was that the judge did conclude that the property was a dwelling-house. Any other finding would have contradicted the plea the appellant had entered and as we have already said a Newton hearing was not the way in which this issue should have been resolved.

6. The background to how this issue arose can be readily identified by a brief recital of the facts. The burglary was of a property at 26 Northwood Gardens, Barkingside. This building was clearly designed as, and normally was used as a dwelling-house. We have seen, as did the judge, a photograph of the dwelling. It looks like an ordinary domestic property with net curtains on all the windows, save for the fact that there is a skip outside the front door, in which case there is a large amount of material, that it perhaps not a surprising thing to find. There is no evidence before the court and was no evidence before the court as to what, if any, furniture was in it, whether anyone was actually living there at the time or had temporarily moved out for repairs, or whether the property was being done up for the purposes of being let. The evidence as to that was non-existent. We do know that the owner at the time was living elsewhere. At the time the appellant broke in, which was about 2 o'clock in the afternoon on 29th June 2012, the only person inside was a builder who was laying flooring in the bathroom and at that time the house was having a new bathroom and kitchen fitted.

7. The appellant having got into the premises took an iPhone belonging to the builder from the porch and ran off with it. He was pursued by the builder. The builder informed a passing police officer and the appellant was arrested and the iPhone was recovered from nearby.

8. In interview the appellant said that the property was not a dwelling but was a building site. We have been invited to give guidance as to how the issue of whether a property as a dwelling-house should be approached, when and where and if it is in dispute. This is not a suitable case in which to do that. In an appropriate case it would be a matter for a jury to determine and the directions given by the judge could, if appropriate, be considered by this court. It is however largely a question of fact in each individual case which the jury would have to decide.

9. It would be open when a defendant is committed to the Crown Court on a dwelling-house burglary on the three strikes principle for an application to be made by the defence to the Crown Court to dismiss the charge if they contend there was not sufficient evidence on the papers to support the allegation that the property was a dwelling-house.

10. The plea of guilty having been entered to the burglary of a dwelling, that is the basis on which the sentencing judge should have proceeded and on which we must proceed. It is common ground that as a result of this offence the appellant was liable to be sentenced to a minimum term of three years' custody for it, unless there were particular circumstances relating either to the appellant or the offences which would make it unjust in all the circumstances to impose such a sentence. Credit for a plea of guilty in those circumstances would be limited to 20 per cent.

11. A number of matters have been referred to us which it is suggested mean that this should be taken out of the qualifying for section 111 and that it would be unjust in all the circumstances to impose such a minimum sentence. Those matters are that the appellant was only just 16 at the time he committed the first qualifying offence of burglary, that on the facts of this particular burglary it was the opportunistic taking of a phone which was left accessible to a thief and it may well be that access to the premises was more easily made because the premises were being renovated. It is argued that it lacks many of the harmful features of a normal domestic burglary. There was no evidence that the owner had left property in the premises and there was no evidence that there was an invasion of a home, which is one of the most harmful features of a domestic burglary. The other two qualifying burglaries were burglaries of entry with intent and no property had been taken on those occasions. Another of the burglaries related to premises which were undergoing repair at the time the burglary took place. As to whether anyone was actually living in the premises at the time we simply do not know; it was repairs taking place to the roof.

12. Combining all those matters together, we do come to the conclusion that it would be unjust to impose a minimum sentence of three years in those circumstances. We take the view, having considered all those matters, that in our judgment the appropriate starting point to have been taken by the judge was one of two years' imprisonment. Clearly the fact that it is the third burglary is of significance in increasing the starting point and this appellant is a man, as can be seen, who has a record in the past for similar sorts of offences. Also we do not regard it in any way as being a trivial offence and the theft of an iPhone can be an extremely serious matter for the loser.

13. In all those circumstances, we consider that the appropriate starting point is one of two years' imprisonment. As we are not applying the minimum sentence provisions the restriction on credit for plea to 20 per cent does not apply - see Darling[2010] 1 Cr.App.R (S) 63. On the other hand, the appellant was caught red-handed and we therefore think that the appropriate discount in all those circumstances to allow for the early plea of guilty is one of 25 per cent. Accordingly, the original sentence is quashed and reduced to a sentence of 18 months' imprisonment. The time spent in custody serving the other sentence will count towards that sentence. To that extent the appeal is allowed.