Silvera, R. v

MR JUSTICE LEWIS: On 29th October 2012, the appellant, who is now aged 34 years, pleaded guilty to one offence of burglary of a dwelling. On 2nd November 2012 the appellant was sentenced at Snaresbrook Crown Court to 40 months' imprisonment. The appellant appeals with leave of the single judge.

The facts of the offence can be stated shortly. At some stage between 7 pm and 9.15 pm on the evening of 17th August 2012, a burglary occurred at 16 Powerscroft Road, London. The rear gate of the property was smashed and the rear basement window was also smashed in order to gain entry to the property. A laptop worth £1,000 was stolen. The occupant was not at home. A neighbour heard the sound of breaking glass and heard voices coming from number 16. She called the police. The appellant was seen walking hurriedly away from the property carrying something in his arms. The police apprehended him and found that the item he was carrying was the stolen laptop, partially wrapped in black clothing.

The appellant has a long history of convictions for a number of offences, namely 33 convictions involving 58 offences. They include offences of theft, robbery and handling stolen goods. In particular the appellant has two previous convictions for burglary of a dwelling and the present offence was his third conviction for a burglary of a dwelling. In those circumstances, section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 required that the court impose an appropriate custodial sentence for a term of at least three years, except where the court is of the opinion that there are particular circumstances relating to any of the offences or the offender which would make it unjust to do so in all the circumstances. Given the information before the judge at sentencing, it could not realistically be argued that it was unjust to impose a minimum term of three years.

The sentencing judge noted that this was the appellants's third domestic burglary. She noted that this offence had been committed whilst the appellant had been released on licence for the second domestic burglary. The sentencing judge considered that that was an aggravating feature which justified a longer sentence than simply the mandatory three years for a third domestic burglary. The judge also noted that the appellant had pleaded guilty at the first opportunity. The sentencing judge said that, given that this was a third burglary, it was committed whilst the appellant was on licence and the appellant had a considerable and extensive previous convictions record, the appropriate starting point was four-and-a-half years' imprisonment. She regarded the appellant as being entitled to 20 per cent credit and imposed a sentence of three years and four months.

In the written grounds of appeal and in submissions made orally before us today, Mr Gatley for the appellant puts forward two grounds of appeal. First, he says that the starting point of four-and-a-half years was too high for this burglary. He submitted that this would be at the top end of the sentencing range if it were a category 1 burglary under the Definitive Guidelines for Sentencing on Burglary and was too high for an offence which fell into category 2 or possibly a category 3 burglary. Further, he suggested that there was an element of double-counting in the judge's calculation in increasing the starting point because of his previous record, as that record would be reflected in the fact that the minimum sentence only applied if there were three burglaries. Secondly, he contended that the judge recognised the appellant had pleaded guilty at the first opportunity. That would normally attract a one-third reduction and he submitted that the judge erred in making a reduction of only 20 per cent.

In our judgment, the proper approach to sentencing is set out in the judgment of this court in R v Michael Andrews [2013] 2 Cr.App.R (S) 5 and the earlier case of Gordon Thomas Finley McKay [2012] EWCA Crim. 1900. The correct approach is to have regard to the Sentencing Council Guidelines and then to ensure that the final sentence imposed is not less than the minimum sentence required by section 111 of the Sentencing Act. Further, the three year minimum term is not the starting point. Rather, the judge must go through the proper sentencing exercise in accordance with the guidelines and should then cross-check to ensure that the sentence is no less than the minimum term required. In some circumstances it may be significantly more.

The judge in the present case however has appeared to take the minimum three year sentence under section 111 as the starting point and has then increased that to reflect the aggravating features of this case. In our judgment, the proper approach is as follows. This would be a category 2 offence under the Sentencing Guidelines on Burglary: with a starting point of one year's custody and the category range being a high level community order to two years' custody. In our judgment, on the facts of this case it is appropriate to increase the starting point beyond that range to reflect two aggravating features. First, the fact that the burglary was committed whilst the appellant was on licence was an aggravating feature. Second, the previous convictions of the appellant are also an aggravating feature. The appellant has two previous convictions for burglary. He also has a considerable and extensive record of previous convictions for a variety of other offences, including theft, robbery and handling stolen goods. The previous convictions are an aggravating feature. That does not in our judgment involve any element of double-counting as suggested by Mr Gatley. Rather it involves treating the previous convictions as an aggravating factor increasing the seriousness of the offence when determining the appropriate sentence.

In all the circumstances, in our judgment therefore, the appropriate starting point on the particular facts of this case is three years' imprisonment. The appellant would then be entitled to credit for the guilty plea, provided that the sentence imposed was not less than eighty per cent of the minimum sentence required under section 111. In our judgment, the appropriate sentence in light of the guilty plea is one of 30 months' imprisonment. That sentence is not less than the minimum sentence required under section 111 of the Sentencing Act. To that extent the appeal is allowed. The sentence of 40 months' imprisonment is quashed and we substitute a sentence of 30 months.