R v Steven Nunan

MR JUSTICE GOOSE:

Introduction

The appellant, Steven Nunan, who is now aged 43, appeals with limited leave against his sentence imposed in the Crown Court at Lewes on 21 May 2024 by His Honour Judge Mooney.

On 23 April of that year, the appellant pleaded guilty to two offences of burglary, contrary to section 9(1)(a) of the Theft Act 1968, and a further offence of theft, contrary to section 1(1) of the Theft Act 1968. He was committed for sentence to the Crown Court, where he was sentenced to 24 months' imprisonment for the first offence of burglary, 14 months' imprisonment for the second burglary offence, being consecutive; and six months' imprisonment for the theft offence, also being consecutive. The total sentence was 44 months' imprisonment.

The appellant received leave to appeal his sentence but limited to the principal ground of appeal, namely whether the judge correctly identified the category within the Guideline of Burglary for the first offence of burglary. The appellant seeks to renew his other grounds of appeal upon which leave was refused.

The offences

The appellant's offending occurred during April 2024. The first offence in time is the second of the burglaries committed for sentence. On 8 April 2024, the appellant gained entry to a residential property by throwing a brick through the kitchen window. Having entered the property whilst the occupants were absent, he stole a laptop computer, an iPad and sapphire ring. Other items of jewellery were also taken which were of sentimental value.

On 16 April 2024, eight days later, the appellant gained entry into another residential property. The occupants were absent. He carried with him a rucksack and a hammer. Evidence of his entry and movement in part of the property inside were captured from a Ring doorbell system. Initially, he rang the bell, then knocked repeatedly, to see if the occupants were present. Once confident that they were not, he used the hammer to gain access to the house. Significantly, once inside, he placed the hammer into the rucksack before carrying out his search. He stole a watch, a Rolex leather strap, two Rolex boxes and paperwork, an enamel gold trinket and other items, worth in total £9,000. When he left the property with those items, it is clear from the video evidence that he was no longer carrying the hammer. He made his escape when the alarm system was activated.

The third offence occurred on 20 April 2024. On this occasion, the appellant stole cabling from commercial premises worth £8,000.

On arrest on 22 April, the appellant admitted all three offences in his police interview and subsequently pleaded guilty in the Magistrates' Court as we have already described.

Antecedents

The appellant has 19 convictions for 35 offences between 1995 and 2018. Whilst his last offence was for driving over the alcohol limit, his previous offending included 11 offences for dishonesty, amongst which were for robbery, burglary of a dwelling house and burglaries of non-dwelling houses. He had not offended between 2018 and 2024.

Grounds of appeal

The appellant's ground of appeal for which limited leave was granted by the single judge is centred on the contention that the judge identified the wrong category within the Burglary Guideline. In sentencing the appellant, the judge concluded that the first offence (the burglary on 16 April 2024) fell within category A2 of the guideline, which provides a Starting Point of two years' imprisonment and a sentencing range of one to four years. The judge concluded that the carrying of a weapon to the scene was a fact of high culpability, rather than being equipped for burglary, which is of medium culpability.

It is submitted on behalf of the appellant that the evidence shows that the hammer was used only to gain entry and not as a weapon. It is argued by Mr Shah, for whose submissions we are grateful, that this was not a high culpability offence and that the proper category for sentencing was category B2, with a Starting Point of 18 months and a range of six months to three years.

The remaining grounds of appeal, for which permission was not granted but are renewed before this court, concern the argument that the judge failed to give sufficient weight to the mitigation on behalf of the appellant when passing sentence. He had made full and frank admissions during police interviews, and had significant personal mitigation set out in the advice upon appeal. This included the appellant's remorse, reflected by his admissions to the police in interview, and the efforts that he had made to avoid offending since 2018, during which time he had obtained work.

Discussion and conclusion

We have been provided with the recorded video evidence from the first burglary offence, the detail of which we have already described above. It is clear to us that the proper inference to be drawn from the appellant's use of the hammer is that it was a tool used to gain entry, rather than a weapon to be shown or threaten the occupants. The fact that he placed the hammer inside his rucksack upon entering the property serves to confirm the submission on behalf of the appellant. Accordingly, we are persuaded that the judge, with respect, fell into error when he treated the first offence as one which fell within category A2 of the guideline.

Therefore, we must consider what should be the appropriate sentence for that offence. With a Starting Point of 18 months, a significant uplift in that sentence is required to reflect two aspects of harm within category 2. The Victim Impact Statement reveals that at least moderate psychological injury to the occupiers of the property which was burgled. This should not be underestimated. Secondly, the appellant stole property which was at least a moderate degree of loss in that it was valued at £9,000. Taking into account also the aggravating and mitigating factors, the previous convictions were of significant seriousness, whilst accepting that there has been a period since 2018 when the appellant had not offended. In mitigation, the appellant's remorse is demonstrated by his frank confessions to the police.

To allow for the two factors of harm within category 2 and the aggravated factors of seriousness, means that the Starting Point of 18 months should be increased to 30 months, but, after taking into account the factors in mitigation, a sentence of 27 months' imprisonment is appropriate. Allowing for the full plea discount of one third, that sentence is reduced therefore to 18 months.

The remaining grounds of appeal, for which leave was refused, concern whether sufficient weight was given whilst sentencing the appellant to his personal mitigation. No argument is raised about the categorisation of the burglary offence which occurred on 2 April 2024. Allowing for the aggravating factors we have identified meant that the Starting Point of 18 months needed to be increased and adjusted downwards to reflect the mitigating factors. In our judgment, a sentence of 21 months takes into account all available mitigation and is not an excessive sentence. After full plea discount of one third, the sentence of 14 months' imprisonment imposed by the judge was in our view entirely appropriate.

Accordingly, we are not persuaded that the other grounds of appeal have any merit and agree with the single judge that leave is refused.

Therefore, we allow this appeal in part, reducing the sentence on the first offence, the burglary on 16 April 2024, from 24 months to 18 months' imprisonment. The remaining sentences will remain as imposed, since we are satisfied that the judge took into account appropriately the principle of totality, and leading to a sentence of 38 months' imprisonment.

To that extent, this appeal is allowed.

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