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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McMillan, R. v [2016] EWCA Crim 409 (23 March 2016)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/409.html
Cite as: [2016] EWCA Crim 409

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Neutral Citation Number: [2016] EWCA Crim 409
Case No: 2015/3705/a8 & 2015/3951/A8

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL
23 March 2016

B e f o r e :

LADY JUSTICE RAFFERTY DBE
MRS JUSTICE NICOLA DAVIES DBE
HIS HONOUR JUDGE FARRER QC
(Sitting as a Judge of the CACD)
____________________

R E G I N A
v
ELLIS MCMILLAN
THEO SMITHARD-POWELL

____________________

Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

____________________

Mr C Baur appeared on behalf of McMillan
Mr A Houston appeared on behalf of Smithard-Powell
The Crown did not appear and were not represented
____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

Crown Copyright ©

  1. JUDGE FARRER: On 31st July 2015 in the Crown Court at Southampton, the appellants were sentenced by His Honour Judge Burrell QC. Theo Smithard-Powell was sentenced to a total of 10 years' imprisonment for involvement in two indictments which were referred to as the Southampton indictment and the Reading indictment. In relation to the Southampton indictment, he received six years' imprisonment for conspiracy to burgle and four years' imprisonment concurrent for an offence of conspiracy to steal. There was no separate penalty imposed for an offence of handling stolen goods. In relation to the Reading indictment he was sentenced to four years' imprisonment consecutive for an offence of conspiracy to burgle. He had pleaded guilty to all offences and it was common ground that he was entitled to a full one-third discount.

  2. So far as Ellis McMillan is concerned, she was convicted after trial for her part in the Southampton indictment. She received sentences of three years' detention concurrently for offences of conspiracy to burgle and conspiracy to steal. In her case, in so far as the sentencing judge referred to imprisonment, the record will be corrected to record "detention in a young offender institution".

  3. The appellants appeal against those sentences by leave of the single judge.

  4. The facts are as follows. The first indictment in time was the Reading conspiracy involving Smithard-Powell alone. Between 1st February 2014 and 7th March 2014 a total of 23 dwelling-houses were burgled in and around Maidenhead, Aylesbury and Romsey. The offences were committed at night by a group who targeted occupied dwelling-houses with UVPC front doors. That was done because the group had perfected a method of opening such doors by use of a particular tool. Having gained entry the downstairs of the properties were searched and handbags, computers and other valuables stolen. On a number of occasions car keys were taken and valuable cars then stolen. Typically those cars would be left parked up for several days to test whether or not they were fitted with tracker devices.

  5. Smithard-Powell pleaded guilty to this conspiracy on the basis that he was involved in 14 of those 23 offences. The last of those offences was committed on 28th February 2014. By that time, Smithard-Powell had been identified by the investigators and was circulated as wanted. From that point onwards he was evading capture, yet continuing to offend.

  6. In March 2014, Smithard-Powell met McMillan and they formed a relationship. Between 20th February 2014 and 30th August 2014, Smithard-Powell was involved in a second conspiracy to burgle dwellings and steal cars. This conspiracy involved different participants, including Ellis McMillan. Between those dates, 72 dwellings were targeted in and around the Southampton area. The homes were selected because they were linked to high value cars and were fitted with UPVC front doors. Once again the same method of entry was deployed by the thieves. Having gained entry, the downstairs of the properties were searched and valuables stolen as well as high value cars. Once again, those cars would be parked nearby for a number of days in order to ascertain whether they were equipped with tracker devices. Those that were not rapidly recovered by the authorities were given false identities and then sold on. A total of 23 vehicles were stolen with an estimated value of over £500,000. Only 11 of those cars were recovered.

  7. McMillan's role in the conspiracy was to book taxis for Smithard-Powell to enable him to move from one burgled premises to another. He did that on at least seven occasions. In addition, she booked rooms for him at bed and breakfasts and passed on calls and texts from a co-conspirator. On at least four occasions she accompanied Smithard-Powell to a shop where he bought items such as chisels and gloves to be used in the course of the offending.

  8. The sentencing court had before it a number of victim personal statements which made plain that these offences had significant and enduring effects upon the victims. They included reference to victims no longer feeling safe in their own home and now planning to move house. They referred to property of sentimental value being stolen and children being present in at least some of the attacked premises.

  9. Turning to antecedents, Smithard-Powell was 22 at the time of sentence. He was 20 at the time of the offences. He had committed 26 offences on 16 previous occasions. They included offences of handling stolen goods and going equipped for theft. In addition he had been sentenced to eight months' detention in 2012 for two offences of dwelling burglary. Later that year for conspiracy to burgle he received a sentence of 28 months' detention.

  10. His pre-sentence report noted that the offences were motivated by the need for money to fund his drug use. He expressed regret and asked for help with his mental health problems. In that context the psychiatric report before the court concluded that he fitted the criteria for a diagnosis of emotionally unstable personality disorder. He exhibited a number of depressive symptoms but did not fulfil the criteria for a depressive disorder. The recommendation in that report was for further assessment with a view to a hospital order.

  11. At the time of her sentence, Ellis McMillan was 18 years of age. She was 17 at the time of the offending. She was of previous good character and was assessed in her pre-sentence report a posing a low risk of re-conviction.

  12. In passing sentence on Mr Smithard-Powell, His Honour Judge Burrell concluded that this was a highly professional operation involving significant pre-planning. Whilst he could not conclude that Smithard-Powell was the ringleader, he was an active participant in the conspiracy with significant previous convictions. He concluded that the Southampton indictment, encompassing as it did some 72 burglaries, fell outside the relevant sentencing guideline and after credit for guilty plea concluded that the appropriate sentence was one of six years. He passed the concurrent sentence of four years for the conspiracy to steal to which we have referred. In relation to the Reading indictment the judge concluded that this was a separate conspiracy involving different participants. He noted that the Southampton offences took place after Smithard-Powell was being sought in relation to the Reading matters. The judge directed himself to consider the Sentencing Council's guideline on totality and reminded himself that he must have regard to the principle of totality and ensure that the overall sentence was just and proportionate. He concluded that there should be consecutive sentences in relation to the Reading indictment. He assessed that sentence within the burglary guideline as being a Category 1 offence with a range of between two and six years. He took the provisional sentence of six years, which after discount for the guilty plea reduced the sentence of four years which was ordered to run consecutively to the Southampton indictment.

  13. In relation to McMillan, the judge noted that she was only 17 at the time and was of previous good character. He accepted that she was under the influence of Smithard-Powell, but in light of the seriousness of the conspiracy he felt he was obliged to pass an immediate sentence of imprisonment. He passed the sentence of three years' detention to which we have referred.

  14. On behalf of Smithard-Powell, Mr Houston advances this appeal before us on the basis that the sentencing judge was wrong to pass consecutive sentences in relation to the two indictments. He submits that the end of the Reading indictment and the start of the Southampton indictment were close in time. He points out that similar modus operandi were deployed in both conspiracies. He submits that you could envisage worse offences than these burglaries. Ultimately he submits that the final sentence of 10 years reflects a notional provisional sentence of 15 years which is in excess of the 14 years available for conspiracy to commit burglary.

  15. We are unpersuaded by those submissions. These were offences of the utmost gravity, involving a catalogue of aggravating features. They were professionally planned and high value items were targeted. This was a sophisticated series of offences and houses were targeted with UVPC front doors because the offenders had developed a method of opening such doors. The offences were committed by a group at night and involved entry into occupied dwelling-houses, thereby accepting the risk of confrontation with home owners. Predictably the impact on the victims was significant. Finally, Smithard-Powell had relevant previous convictions.

  16. The Reading indictment seen in isolation fell within Category 1 of the definitive guideline. Smithard-Powell pleaded guilty on the basis of involvement in no less than 14 of those burglaries. That combined with the aggravating features to which we have referred justified the judge in moving to the top of the category range and adopting a provisional sentence of six years before discount for plea. The Southampton indictment involved no fewer than 72 burglaries with properties worth in excess of £500,000. The sentencing guidelines are applicable for a single offence and in our judgment given the scale and gravity of these burglaries the sentencing judge was entitled to find that pursuant to section 125 of the Coroners and Justice Act 2009 it would be contrary to the interests of justice to sentence within the normal range. In our judgment the starting point adopted of nine years was fully justified.

  17. So far as totality is concerned, the judge was dealing with two conspiracies charged in separate indictments. He was justified in concluding that they were separate offences because as he noted, they were committed by different personnel and the Southampton offences were committed in circumstances where Smithard-Powell knew that he was wanted in relation to the Reading matters. In addition, whilst there was some geographical overlap, the two sets of offences largely took place in different areas of the country. In these circumstances, we conclude that the judge was entitled to pass consecutive sentences.

  18. The question is therefore whether the total sentence imposed of 10 years is such that it was not just and proportionate. In our judgment that is not the case. As we have observed, this was offending of the utmost gravity, carried out by a man with significant previous convictions. Globally he admitted involvement in 86 night-time dwelling burglaries carried out over a five month period. We conclude that the sentence passed was entirely proper and in no way manifestly excessive. Accordingly, this appeal is dismissed.

  19. We turn now to consider Ellis McMillan. On her behalf Mr Baur submits that the sentence passed is manifestly excessive. He relies upon the fact that at the time of the offences she was only 17 years of age. He points out that her involvement only spanned a period of some 16 weeks and that she offended under the influence of Smithard-Powell who was extremely controlling. He understandably relies upon her previous good character. He also advances submissions as to the particular role that she played, essentially arguing that the judge attributed too great a role to her in the sentencing exercise.

  20. So far as her role was concerned, the judge accepted that she was under the influence of Smithard-Powell and he plainly sentenced her on the basis that she played a far lesser role than did he. In so far as it is submitted that he nonetheless attributed too great a role to her, we cannot accept that submission. The judge presided over her trial and was in the best position to assess the part she played and her culpability. The court could only interfere with that assessment if there was some error of principle or if it was clearly wrong. That is simply not the case.

  21. In passing sentence, the judge had to have regard to McMillan's age, good character and other personal mitigation. However, he was equally obliged to have regard to the fact that this was a grave offence as the jury found McMillan played her role. Bearing those matters in mind, we are unable to say that the sentence in her case was manifestly excessive. In those circumstances this appeal is dismissed.

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/409.html