R v Mark Burke

The appellant is now 53. On 13 February 2025, in the Crown Court at Southwark, he was sentenced by His Honour Judge Griffiths ("the judge") to a total of 42 months' imprisonment for two offences of theft, one offence of possession of heroin, two separate breaches of a Criminal Behaviour Order and the activation of a part of an earlier suspended sentence. He appeals that sentence with leave of the Single Judge.

The appellant is a heroin addict. He has 103 previous convictions for 233 offences. These included 183 theft and kindred offences, two drug offences and 47 offences of breaches, failure to surrender to bail and the like. Despite repeated efforts by the authorities, nothing seems capable of breaking the appellant's cycle of drug addiction and criminality.

The appellant’s modus operandi is to fund his addiction by stealing expensive clothes from shops in the West End of London. Ultimately, on 10 April 2024, this resulted in the appellant being issued with a 10-year Criminal Behaviour Order ("CBO"). One of the conditions of the CBO prohibited the appellant from entering the Borough of Westminster.

On 25 October 2024, the appellant went to the Sun Spell shop in Jermyn Street, W1, and stole 6 cashmere jumpers with a total value of £900. That was the first count of theft, for which the judge imposed a custodial term of 5 months' imprisonment.

On 28 November 2024, the appellant was given a suspended sentence of 12 weeks' imprisonment for other offences of theft. The operational period of that suspended sentence was 18 months. Each of the offences detailed below comprised a breach of that suspended sentence order.

On 18 December 2024, the appellant went to the Peak Performance store in Covent Garden where he stole 6 jackets to the value of £2,000. That was the second count of theft for which the judge imposed a consecutive sentence of 5 months' imprisonment.

On 30 December 2024, the appellant was seen by a police officer entering St James Park Underground Station. That was the first breach of the CBO for which a term of 15 months' imprisonment was imposed.

On 15 January 2025 the appellant was seen by police officers in Old Compton Street in Soho. He was taken to the police station at Charring Cross where a small amount of heroin was found in his bag. That was the second breach of the CBO for which a consecutive term of 15 months' imprisonment was imposed. There was a 3-month concurrent term imposed in respect of the heroin.

In addition, the judge was obliged to activate the suspended sentence imposed on 28 November 2024. He activated a reduced term of two months.

Accordingly, the overall sentence imposed on the appellant was 42 months. That was made up of two consecutive terms of 5 months each for the offences of theft (10 months); two consecutive terms of 15 months each for the breaches of the CBO (30 months); and a two month suspended sentence.

We need to say something about the hearing which resulted in this sentence. We do not consider that the prosecution submissions were of any real assistance to the judge, particularly in respect of the Sentencing Guidelines and the principles of totality. In addition, Mr Robinson, who appeared for the appellant, both then and again today, seemed incapable of controlling his client. On any analysis of the transcript, the judge's sentencing remarks make unhappy reading.

The remarks begin inauspiciously when the judge noted that he had "lost the start of my remarks". We assume that this was a reference to his computer record of what he intended to say. The judge should have stopped until he found his note. Instead he ploughed on, and this appears to have given rise to a hesitancy and a lack of clarity in what he said. There was repeated confusion about the dates of some of the relevant events. The appellant began to interrupt and he was not restrained by Mr Robinson.

The judge put the breaches of the CBO in category A1, finding a continuing risk of serious criminal behaviour and persistent offending. Originally he appeared to suggest that the appropriate term was two years, although taking into account the guilty plea that was eventually reduced to 15 months. The judge's maths were unclear, even to himself. At one point he said: "Adding those together… That is where I have gone wrong."

The appellant then engaged with the judge on the basis that the theft of the 6 cashmere jumpers totalling £900 from Sun Spell predated the imposition of the suspended sentence. That was correct, and the judge's muddled chronology had not made that clear. But in fact nothing turned on it, because the second theft from Peak Performance occurred after the imposition of the suspended sentence and therefore activated it. The appellant's suggestion: "That’s what I’m fucking saying, isn’t it? Yeah, so it’s nothing should happen, yeah? " was not only offensive but wrong on the facts.

There then followed lengthy exchanges between the judge and the appellant, with the appellant becoming more and more agitated and continuing to use abusive language. When the judge brought that conversation to an end and sought help, he momentarily called Mr Robinson by the name of counsel who had appeared in front of him the previous day. Mr Robinson replied, with what appears to be considerable hauteur, “Is that question directed at me?”. Little assistance was then offered to the judge, the high watermark being Mr Robinson’s laconic comment: “Your Honour could make a new CBO, I suppose”. Finally, after more exchanges, Mr Robinson had to ask the judge how the sentence broke down for each offence. During the course of that exercise, there was this exchange:

Although we can understand the judge's exasperation, we do not consider that his remarks were in any way appropriate, particularly not at the end of a sentencing hearing when he was still having to explain precisely how the sentence was made up. In our view, that entire sentencing exercise was fundamentally flawed. It therefore requires to be redone by this court, with the only limitation being that the overall sentence imposed on the appellant cannot be higher than that imposed by the judge.

There are two grounds of appeal for which leave was given. The first was that the combined sentence of 30 months' imprisonment in respect of the two breaches of the CBO was manifestly excessive. The second is that the judge had insufficient regard to totality. We consider that both of those submissions have force. However, this focus ignores a number of other important errors in the sentencing exercise which require rectification.

We start with the theft offences. The judge categorised the theft offences as category B3. That was plainly wrong. Mr Robinson correctly submits this morning that the judge was having regard to the wrong Sentencing Guidelines because he was not having regard to theft from a store. In accordance with the right guidelines, both thefts fell into the culpability A category because the appellant was the subject of a banning order. Although that was a CBO, and not an order in respect of these particular stores, the CBO had been imposed because the appellant was stealing from numerous stores in the West End. It was a much more wide-ranging order than a simple store ban, and the breach of it was therefore a matter of greater culpability.

In relation to harm, for category 1, the cutoff is £1,000. The Sun Spell theft was worth £900 and therefore at the very top of category 2, and given the appellant's numerous previous convictions could fairly be raised to category 1. The value of the Peak Performance theft (£2,000) was well above the cutoff for category 1 in any event.

Category A1 has a starting point of 26 weeks' custody and a range of up to 3 years. In all the circumstances, we consider that before any discount for plea, each theft would have attracted a term of 2½ years (or 30 months' imprisonment). Those sentences should however be concurrent because they represented very similar types of offending. There is no dispute that the appellant was entitled to a discount of one third for his guilty plea. That would reduce the 30 months to a term of 20 months on each theft offence to run concurrently.

As to the breaches of the CBO, the judge categorised these offences as category A1. Culpability category A is achieved when there is a very serious or persistent breach. Harm category 1 is achieved where the breach either causes serious harm or distress or it demonstrates a continuing risk of serious criminal and/or anti-social behaviour.

Mr Robinson argued this morning that the judge was wrong to put the harm in category 1 because there was no risk of serious criminal behaviour; at most the risk was of further shoplifting. Furthermore, he submitted that if this was a persistent breach, thereby justifying culpability in category A, that conclusion could only be justified by taking into account both the breach offences. In that way he said the judge had been wrong to impose two consecutive terms for these offences.

In the light of the appellant's previous convictions we consider that the correct category for the breach offences was category A1. It was plainly culpability A because there were persistent breaches, and the harm caused by this appellant to the store owners of the West End generally must be regarded as high. But we agree with Mr Robinson that this analysis again points towards making the sentence for the second breach offence concurrent, not consecutive, with the first. That properly reflects the persistent nature of the breach; otherwise, there is a risk of double counting.

In accordance with the guidelines, an offence in category A1 has a starting point of two years' imprisonment. A longer term for each breach offence here was appropriate again, given the background and the appellant's similar convictions. But for the reasons we have given, such sentences should be concurrent with one another, although consecutive to the term of 20 months we have identified for the theft offences.

It is then necessary to take into account totality. In our view, taking all these points into account, the correct additional term for each breach offence would be 18 months concurrent, subject again to the one-third discount for the early guilty plea. That would reduce the term for the two breach offences to one of 12 months concurrent with each other but consecutive to the 20 months for the thefts. That also has the additional advantage, as Mr Robinson rightly pointed out this morning, of imposing a longer term for the thefts which, on the facts, were more serious (because they involved a breach of the CBO and a separate offence involving actual loss), than the simple breaches of the CBO.

The three months for the heroin possession remains as it is and is concurrent not consecutive. The two months from the suspended sentence requires to be added to the overall term as before. That gives an overall total period of custody of 34 months: 20 months for the thefts; 12 months for the breaches; and 2 months for the suspended sentence.

We consider that the term of 42 months was manifestly excessive. Insufficient allowance was made for totality but, perhaps more importantly, the categorisation was wholly wrong in relation to the thefts, and the judge failed to recognise that those were the more serious offences. Accordingly, we quash the terms of 5 months' imprisonment consecutive on the two theft counts and replace them with a sentence of 20 months concurrent on each theft count. We quash the terms of 15 months consecutive on the two breach counts and replace them with a sentence of 12 months concurrent on each breach count but consecutive to the 20 months. That makes 32 months. To that must be added to the 2 months from the suspended sentence. That makes a term of 34 months overall.

Thus the overall term in this case of 42 months is quashed and replaced with an overall term of 34 months. To that extent, this appeal against sentence is allowed.