No. 2018/02240/A3
Neutral Citation Number:: [2018] EWCA Crim 2155
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  20th  July  2018

B e f o r e:

LORD  JUSTICE  SIMON

MR  JUSTICE  SWEENEY

and

THE  RECORDER  OF  PRESTON
(His Honour Judge Brown)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A
 
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DARREN  BARRY  WILLIAMS

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Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Miss C Pattison appeared on behalf of the Attorney General

Mr C Woolf appeared on behalf of the Offender 

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J U D G M E N T
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LORD JUSTICE SIMON: 
1.   Her Majesty's Attorney General applies, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence which he considers to be unduly lenient.  We grant leave.

2.  The offender is Darren Barry Williams.  He is 39 years of age.  On 4th May 2018, in the Crown Court at Nottingham (having pleaded guilty on 2nd May), he was sentenced by Mr Recorder Thompson to two years and six months' imprisonment for one offence of burglary of a dwelling house.  He asked for five offences of burglary of a dwelling house to be taken into consideration.

The Facts
3.  On Sunday 8th April 2018, Mr and Mrs Fox left their home at 16 Prescott Close, Northampton.  They left it locked and secure before going on holiday.  They left a key with Michael Saunders, a neighbour who lived nearby in Prescott Close.

4.   On Monday 9th April, at approximately 10am, the offender and a male associate approached residents on Prescott Close asking for work.  Mr Saunders saw the offender and the other man knock on the door at number 16 and then leave Prescott Close, having received no reply.

5.  At approximately 10.40am Mr Saunders heard the alarm sounding at 16 Prescott Close.  He and another man, Alan Marshall, went to 16 Prescott Close and entered via the front door, using the key Mr Saunders had been given.  On entering, they encountered the offender who was on the stairs.  He was alone.   He tried to escape.  A struggle ensued that moved from inside the house out into the front garden, where the offender was detained until police officers arrived.

6.  The offender had gained entry by smashing through patio windows to enter the living room, and had subsequently broken the living room doors to enter the main area of the house.  The offender was arrested on suspicion of burglary of a dwelling house and taken to Northampton Police Station.  When he was booked into custody, a police search revealed a piece of costume jewellery in the rear right-hand pocket of his jeans.

7.  When he was interviewed later the same day he made full admissions.  In summary, he said that he had gone to Prescott Close looking for somewhere to burgle.  Number 16 was empty, so he went to the rear of the property and broke into it via the patio door.  Once inside, he put a few items in a pillow case which he found, and put the piece of jewellery into his pocket.  As he was going downstairs he was caught by two men.

8.  He was interviewed again subsequently and admitted five other offences of dwelling house burglary in Northampton, when he had gained entry via a patio door or window.  In summary, on 12th March 2018, at 11 Prescott Close, he stole jewellery, electrical items and cash; on 19th March, at 3 Elderberry Court, he stole jewellery, electrical items and cash; on 22nd March, at 78 Allard Court, he stole jewellery; on 28th March, at 9 Oak Park Close, he stole jewellery, cash and camera equipment; and on 3rd April, at 12 Crestwood Gardens, he stole jewellery, cash and electrical items.

9.  On 10th April 2018, a schedule of offences to be taken into consideration was created in respect of all five offences.  This was signed by the offender and dated.  On the same day, he was charged with burglary, contrary to section 9(1)(b) of the Theft Act 1968.

10.  No Victim Personal Statement appears to have been obtained from Mr and Mrs Fox and there was no reference to one in the transcript of the sentencing hearing.

11.  The offender had twelve previous convictions for 55 offences, committed between 11th April 1997, when he was 18 years of age, and 10th April 2018, when he was 38 years of age.  He has received a range of prison sentences, including non-custodial and custodial sentences.  Thirty-six of his previous offences were for theft and kindred offences.  The following are relevant: first, on 10th November 1998, when aged 19, for three dwelling house burglaries (one committed on bail), he was sentenced to twelve months' detention in a young offender institution; second, on 13th March 2000, when aged 20, for two dwelling house burglaries (one committed on bail), he was sentenced to 60 months' (five years) detention in a young offender institution; third, on 19th August 2002, when aged 23, for two dwelling house burglaries and one attempted dwelling house burglary (all committed on bail), 45 month's imprisonment (three years and nine months); fourth, on 9th November 2004, when aged 25, for one dwelling house burglary and fifteen burglaries taken into consideration, three years' imprisonment.  That was the third such offence and invoked the powers under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, providing for a minimum term of three years' custody; and this sentence was imposed.  Fifth, on 18th July 2008, when aged 29, for one dwelling house burglary, a term of 30 months' (two and a half years) imprisonment; sixth, on 8th January 2010, when aged 30 years, one dwelling house burglary and nine offences taken into consideration, three years' imprisonment; and seventh, on 4th March 2016, when aged 36, two dwelling house burglaries and six non-dwelling house burglaries, a term of three years' imprisonment.

12.  Accordingly, prior to the current matter, the appellant had been sentenced on seven separate occasions for the same category of offence.  

13.  The offender was on licence when he committed the offence of burglary on 9th April 2018 and when he committed the five offences of burglary which he asked the court to take into consideration when passing sentence. 

14.  On 4th May 2018, the case was listed for sentence.  The schedule of offences to be taken into consideration was placed before the Recorder.  The offender confirmed that he wanted those offences to be taken into consideration when passing sentence for the indicted offence of burglary committed on 9th April.  The facts of the case were then opened.

15.  Several letters written by the offender's family and partner were placed before the Recorder in support of his plea in mitigation.  The letters referred to the offender's long-term drug addiction, anxiety and depression, difficulties in securing a job with his extensive history of dishonesty-related offences and a desire to move out of the area and away from his criminal peers who provide him with drugs.  The Recorder said:
I have read the very articulate and eloquent references that have been put forward on your behalf by members of your family and your partner.

16.  The Recorder sentenced the offender on the basis that the offence fell either at the upper end of category 2 or at the lower end of category 1 of the guidelines, because of the elements of confrontation (although not with the occupier) and some degree of planning.  He was required to pass a minimum sentence of three years' custody, subject to credit for the guilty plea.  The offences to be taken into consideration were aggravating features.  The mitigation was the contents of the letter of support and the full credit for his guilty plea.  Applying the burglary offences definitive guidelines, the Recorder determined that this case fell on the cusp of category 1 and category 2.  A case falling within category 1 has a starting point of three years' custody and a range of two to six years; and a case falling within category 2 has a starting point of one year's custody and a range of a high level community order and two years' custody.

17.  The Attorney General draws attention to the following aggravating factors which merit an uplift: the offender's previous convictions; the offences taken into consideration; and the fact that the offence was committed on licence.

18.  The offender's personal mitigation includes: his long-term drug addiction, anxiety and depression and difficulties in securing a job which is acknowledged as meriting a downward adjustment.

19.  The Recorder did not specify a starting point.  He said that he would reduce the sentence to reflect full credit for the plea of guilty but stated that the amount of credit was limited because the offender was subject to a minimum sentence of three years' imprisonment under section 111.  He imposed the sentence of two years and six months' imprisonment and made a victim surcharge order.

20.  Miss Pattison, who appears on behalf of the Attorney General, accepts by reference to the Sentencing Council Definitive Guidelines on Burglary that the Recorder was entitled to the view that the burglary offence fell on the cusp of categories 1 and 2, indicating a starting point of about two years' custody.  However, she submits that the guidelines are of less utility when considering crimes that fall to be sentenced under section 111.  That section provides that where a person is convicted of a domestic burglary after November 1999, is over 18 and he has been convicted of two other domestic burglaries after that date, the court must impose an appropriate custodial term of at least three years, except where the court is of the opinion that there are particular circumstances which relate to the offence or to the offender which would make it unjust to do so in all the circumstances.  Where the provisions of section 111 apply, the sentence which reflects credit for the guilty plea must not be less than 80 per cent of three years: see section 144(2) of the Criminal Justice Act 2003.

21.  She draws attention to the observations of this court in R v Alec Paul Jones [2015] EWCA Crim 1258.  In that case the appellant broke into a dwelling house by smashing the glass in a rear door.  He stole a laptop computer, a notebook computer and between £100 and £110 in cash.  The owners were not present at the time.  He had 53 convictions on 18 occasions, of which 25 were burglaries or attempted burglaries, as well as a number of offences taken into consideration.  A background of dependency on drugs was advanced as an explanation, although not as an excuse.  The appellant had committed the offence while on licence.  He pleaded guilty to burglary and it was considered a category 3 offence.  Giving the judgment of the court, Davis LJ stated at [11]:
The guidelines indicate for such a burglary a sentencing range of a community order up to 26 weeks' imprisonment.  But that, of course, is in effect an irrelevance in the circumstances of this case, given the appellant's antecedent history.  Indeed, on this occasion, as on previous occasions, the appellant faced the automatic minimum term provisions set out by Parliament in section 111 of the Powers of Criminal Courts (Sentencing) Act 2000.

Later, at [13] and [14] he added this:
When offenders persist in such offending, then ever-increasing sentences are to be expected.  But an invariable exponential increase on each succeeding occasion cannot be allowed to give rise to an end result which ultimately bears no true relation to the actual offence … 

… we do think that the sentence ultimately imposed, which connotes a starting point in the region of eight years' custody had there been a trial, was not sufficiently relate to the circumstances of the offence …  a starting point approaching six years would have been appropriate to the circumstances of this case, had there been a trial, bearing in mind the antecedent history of the appellant.

22.  So far as the facts of the present case are concerned, it is pointed out that there were a number of aggravating factors: an element of planning and confrontation (although not with the home owners); most significantly, the large number of previous convictions for burglary; the fact that the offence was committed while on licence; and the five further offences which he wished to be taken into consideration, which is generally to be treated as an aggravating feature justifying an upward adjustment from the starting point: see page 4 of the guidelines on Offences Taken into Consideration and Totality.

23.  On the other side of the balance, the Attorney General acknowledges that the offender was entitled to maximum credit for his guilty plea and some credit for his personal mitigation: his long-term drug addiction, anxiety and depression and his difficulties in securing a job in the light of his antecedent history.

24.  In conclusion, it is submitted that a sentence of 30 months' imprisonment, representing a starting point of 45 months (three years and nine months) was unduly lenient in the circumstances.

25.  For the offender, Mr Woolf in his oral submission argued that the sentence was not unduly lenient.  He accepted that by reference to the guidelines the offending fell on the cusp of categories 1 and 2, indicating a term of two years' custody, before aggravating and mitigating factors were taken into account.  He accepted that the aggravating factors identified by the Attorney General pushed up the starting point to the order of three years' custody.  He pointed out that, in the light of the fact that the offender was given full credit, the Recorder's starting point must have been more than 45 months, which was in excess of the three year minimum set down in section 111.  He also pointed out that the court must not lose sight of the seriousness of the particular offence for which the sentence was imposed.  Proportionality applies as much where section 111 applies as it does to any other sentence.  On this basis, he suggested that the Recorder would have taken a starting point of four years (twice the indicated sentence in the guidelines).   But Mr Woolf added that there was also the personal mitigation to which the Attorney General has referred: the long-term drug addition, anxiety and depression and difficulty in securing a job.  On his previous release, the offender was drug free for a period of seven months and had a job, which he then unfortunately lost.  That, Mr Woolf submitted, was a matter which would have reduced the sentence of four years to a term of 45 months' imprisonment.  He also drew attention to the fact that the offender pleaded guilty; he made his admissions at the earliest opportunity and told the police about the other offences which he invited the court to take into consideration.

26.  We have taken into account all of these submissions.  The offender had been sentenced on seven previous occasions for the same offence: twelve offences of domestic burglary, with 24 such offences taken into consideration.  Early on he had received a sentence of 60 months' detention.  But neither that, nor any of the later and lesser sentences had prevented him, or inhibited him in any way, from continuing to commit burglaries.

27.  In our view, the history of offending, the number of times the provisions of section 111 had necessarily been invoked, the offences of burglary, which the offender asked the court to take into consideration, and the fact that all the offences were committed while on licence indicated a starting point of at least five and a half years' custody, before matters of mitigation were taken into account.  With full credit for the guilty plea, the term of imprisonment should have been a term of 44 months' imprisonment (three years and eight months).

28.  Accordingly, having granted leave, we substitute the term of three years and eight months' imprisonment for the term of two years and six months passed in the Crown Court.