No. 2009/01032/A5
Neutral Citation Number: [2009] EWCA Crim 1217

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  21  May  2009

B e f o r e:

LORD  JUSTICE  GOLDRING

MR  JUSTICE  McCOMBE

and

SIR  PETER  CRESSWELL

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R E G I N A

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THOMAS  ALAN  JOHN  PASSONI
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Miss S Sharma appeared on behalf of the Appellant
Miss J Rickman appeared on behalf of the Crown
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J U D G M E N T
Thursday  21  May  2009

LORD JUSTICE GOLDRING:  I shall ask Mr Justice McCombe to give the judgment of the court.

MR JUSTICE McCOMBE:
1.  On 22 December 2008, in the Crown Court at Dorchester, before His Honour Judge Cutler, the appellant pleaded guilty to one offence of burglary and to one offence of assault occasioning actual bodily harm.  On 29 January 2009 he was sentenced by His Honour Judge Harrow to detention in a young offender institution for five years for the burglary offence.  No separate penalty was imposed in respect of the assault.  The total sentence was therefore one of five years' detention, with a direction that 110 days spent in custody on remand should count towards the sentence.  He now appeals against sentence by leave of the single judge.  

2.  The facts were these.  Mrs Patricia Griffiths is a 77 year old lady who lived with her husband.  On the night on 2/3 October 2008 Mr Griffiths was asleep upstairs in his bedroom and Mrs Griffiths was asleep downstairs in a chair in the living room.  At about 2am she woke to find the appellant sitting in a chair in front of her.  Initially she thought that it was her husband, but then realised that it was not.  She asked him what he wanted.  The appellant got up and pushed Mrs Griffiths back into her chair.  He began to hit her around the head with his fists.  Understandably she was terrified.  She fell to the floor shouting, asking who he was and calling for help.  She hoped that a neighbour would hear her shouts, but nobody did.  Suddenly she realised that the appellant had gone.  She noted that her handbag was still next to her and had not been taken.  She took her keys from her bag and, with no coat on, went out into the night to try to find help.  She went along the road and banged on doors of neighbouring houses, but nobody answered.  She thought that the best place to go was to a fire station, ten minutes' walk from her address.  Before she reached there she came across a bail hostel, where she went for assistance.  She was described as being in a confused and agitated state with bruising to her face.  

3.  The emergency services were called.  Mrs Griffiths told the police what had happened and that her husband was still in the house upstairs in bed.  Entry had been gained by smashing a window, and so the house was still insecure when she left it.  Officers attended and found Mr Griffiths still asleep.  He had not been disturbed in any way.

4.  The appellant's DNA was recovered from blood found at the scene.  He was arrested and interviewed.  He said that he had been out that night with friends.  He was unable to account for the presence of his blood at the property.  In a further interview he admitted burgling the property, but continued to deny the assault.  He said that he had been coerced into committing the burglary offence by another man.  However, there was never any evidence to suggest that anyone else was involved.  

5.  The appellant is 18 years of age.  He has no previous convictions, although he has been cautioned on three occasions.  In 2005 he was cautioned for possessing an imitation firearm in public.  In the same year he was cautioned for criminal damage.  In 2007 he received a further caution for common assault.  

6.  There was a pre-sentence report before Judge Harrow, in which it was said that the appellant had expressed considerable remorse and said that he had been led into committing the offence by an acquaintance.  He said that he would not have committed it if he had not been drinking alcohol heavily.  However, the report indicated that the appellant had a tendency to minimise the assault that had been committed.  He claimed that only one blow had been struck and suggested that that had been accidental.  The connection of this offence with the consumption of alcohol was noted, as was the fact that none of the other matters on his record had appeared to be alcohol related.  However, the reporting officer stated that it was clear that this matter represented an escalation in seriousness in comparison with the earlier matters on his record.  The probation officer concluded that there was a medium risk of re-offending, but that the appellant posed a high risk of serious harm to members of the public.

7.  In passing sentence the judge noted that the offence had been committed against a frail and vulnerable elderly lady in her own home at night.  He referred to the multiple blows that must have been inflicted upon her, which had led to swelling of the eyes, swelling to the forehead and bruising.  Reference was made to the substantial psychological trauma.  The judge said that the only mitigation was the appellant's age, his absence of previous convictions and his plea of guilty, for which implicitly he must have given credit when passing sentence.  He proceeded to pass the sentence to which we have referred and against which an appeal is now brought.

8.  On the appeal it is argued that the sentence imposed was excessive.  It is said that the normal range of sentence for an offence of this nature after a contested trial would have been in the range of eighteen months to four years' custody on the basis that the offence was a burglary of "seriously raised culpability and/or serious impact": see R v Saw and Others [2009] EWCA Crim 1.  It is submitted that, following a contested trial, the sentence should not have exceeded six years, and that the judge's presumed starting point before affording the usual discount for a plea at the earliest opportunity must have been in the order of seven-and-a-half years.  It is further submitted that the appellant's youth and lack of previous offending called for a shorter sentence than that imposed.  Those were the grounds that were argued in the grounds of appeal.

9.  In helpful submissions this morning, Miss Sharma emphasised the decision in Saw and submitted that this was not a case of exceptional culpability to take the case beyond those guidelines which she submitted should have been followed by the judge.  She emphasised the fact that this offence was out of character as compared with the appellant's previous trouble with the law; that he is a very young man; and, according to the prison report, that the custodial sentence appears to have had some beneficial effect on him.

10.  As the sentencing judge noted, force used or threatened against a victim, especially if physical injury is caused, is a serious aggravating factor under the guidelines.  In Saw it was said that such offences are frequently charged as robbery or as offences against the person.  It was argued that this offence fell outside the guidelines set out in the judgment of the Lord Chief Justice.  Although this matter was not so charged, we are satisfied that this is a case that falls within the exceptionally culpable character described in paragraph 22 of the judgment in Saw to which Miss Sharma has helpfully referred us.  On any footing, however, a number of seriously aggravating features identified in the leading case, and by the sentencing judge, were present in this case.  These factors included the repeated violence towards the victim, the vulnerability of that victim, the trauma that was caused to her, and the vandalism of the premises by the breaking of the window to gain access.  It is worth referring in this context to a passage in Saw, where the Lord Chief Justice said:

		"22.  The presence of the victim at home in bed at night while the burglary occurs may well occasion especial trauma certainly if woken by the burglar, and even more so if he or she sees, or, worse, is confronted by the burglar.  In these circumstances it would be unrealistic to regard the victim's presence at home during a nighttime burglary as merely a medium-level aggravating feature.  The same may apply when the householder is at home during the daytime when a forced entry takes place, particularly if the home owner is someone on his or her own, or someone who by himself or herself is caring for children or the elderly.  Such a burglary is likely to cause considerable alarm and distress, and, often perhaps overlooked, while it is taking place, uncertainty about what to do and great fear about what may lie ahead.  To all this we would of course add the particular effect on the elderly and infirm, whose last years can be overshadowed by what sometimes becomes an ever present, pervading fear and constant nervousness.  Many warm and happy memories of bygone years can be destroyed as a direct consequence of burglary, and for some indeed, their home becomes something of a prison, as they barricade themselves behind the security arrangements they believe they need."

11.  We recognise that that was a case in which the court laid down the guideline ranges of sentence upon which Miss Sharma quite properly relies on the appeal.  However, we consider that the effect of burglaries upon elderly persons in their homes at night cannot be underestimated for the reasons given in the passage from the judgment of the Lord Chief Justice that we have cited. 

12.  In our judgment the present offence went well beyond the range of the general sentencing bracket identified in paragraph 22 of the judgment in Saw, and could well have generated a sentence after trial of the magnitude implicit in the judge's sentence passed after a plea of guilty.  Notwithstanding the age of the appellant and his relatively trouble-free past, we consider that it is impossible to say that this sentence, while severe for a young man of this age, was manifestly excessive.  

13.  An alternative way to look at the matter is to note the absence of any separate penalty for the assault.  The judge would have been entirely justified in passing a lesser sentence for the burglary and yet to have imposed a separate, consecutive sentence for the assault, leading to a total sentence of the length that he actually passed.  

14.  Accordingly, this appeal is dismissed.