Neutral Citation Number: [2013] EWCA Crim 1779
Case No: 201302923 A8; 201302924 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Friday, 4th October 2013

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE SAUNDERS 
 
HIS HONOUR JUDGE ZEIDMAN QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

VANCE OLIVER BAILEY
JASON SINCLAIR BAILEY 
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Miss M Myers (Solicitor Advocate) appeared on behalf of the Appellants 
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J U D G M E N T
1.	MR JUSTICE SAUNDERS:  On 16th May 2013 these two appellants, who are brothers, were sentenced to 42 months' imprisonment at Manchester Crown Court for an offence of burglary.  Vance Bailey was given a concurrent sentence of 42 months for a second offence of burglary.  They had both pleaded guilty  before the magistrates and were committed to the Crown Court for sentence because of their history of previous offending.  Vance is 35 years of age and Jason is 43.
2.	The issue which arises for consideration in this case is to what extent it is proper for a judge to increase a sentence of imprisonment to reflect past offending and the likelihood of future offending.
3.	The facts of the offences are straightforward.  The first occurred on 15th April 2013 in a car park in Manchester during the afternoon.  The two of them broke into the security guard's cabin in a car park in Gore Street via a window while the security guard was away checking cars.  He had left the cabin to do his checks at about five past four.  While he was away, a female member of the public saw the two appellants behaving suspiciously.  As she walked across the car park she saw one of them trying to get into the Portakabin window.  She shouted at them, "What are you doing?"  On hearing this, Vance Bailey picked up his sports drink and walked away, but Jason carried on breaking in.  He was trying to force the window open.  The member of the public again shouted, "What are you doing?", to try and stop him.  Vance returned and said to his brother, "Come on, leave it mate", but Jason was not deterred and continued to force the window, which eventually gave in.  Jason then leaned into the Portakabin with his legs hanging out of the window and took some money.  
4.	The security guard, a man called  Panell, returning to the cabin, saw Jason and shouted at him.  Jason then pulled himself out and walked away, taking  £95 he had managed to steal.  Mr Panell approached Jason and confronted him.  Jason put his hand in his pocket and said, "Come on then, you're going to get it".  Mr Panell was frightened by this; he feared the male was carrying a knife.
5.	The member of the public took a photograph of Jason on her mobile phone during the confrontation and he was identified from that subsequently and arrested.  He denied the offence.  Vance Bailey was identified by means of a fingerprint found on the window.  He was arrested and interviewed and he made no comment to all questions put to him.
6.	The second offence was a burglary at the Salford Arms public house in Chapel Street in Salford, and that only concerned Vance Bailey.  A man called  Chimbunde owned the Salford Arms public house.  It appears from the papers, and we have therefore assumed, that nobody lived on the premises.  
7.	At about 4.40 in the afternoon on 18th April, Mr Chimbunde returned to his premises and checked them.  He saw that damage had been caused to a door that led from the yard to the ground floor.  He checked the CCTV and realised from the footage that a man, who turned out to be Vance Bailey, had attempted to gain entry to various areas of the public house while he, the landlord, had been out.  Nothing was in fact taken.  
8.	Vance Bailey was identified from the CCTV coverage.  He was arrested and again made no comment.  Although he took nothing, Mr Bailey managed to do £200 worth of damage in the course of this burglary.
9.	While the threat to the security guard on the first offence of burglary was a serious aggravating feature of the joint offence, any sentence of imprisonment for the offence based on the guidelines would have been considerably shorter than the sentence of 42 months the judge imposed.  
10.	Assuming the maximum credit of one third was given by the learned judge, that means that he took a starting point of somewhere in the region of over 60 months, or five years.  The judge certainly did not give any indication that he was not giving credit for the early plea, which we would have expected him to do if he decided to withhold it.  
11.	So the sentence was outside the guidelines.  The reason why it was outside the guidelines was that these appellants had appalling records, as the judge made clear.  Jason had previously served 20 custodial sentences, including one for four years, and he had 13 previous convictions for offences of burglaries or attempts.  Vance had served 13 sentences of imprisonment and had 11 convictions for burglary, he of course is considerably younger.  At the time they committed the offences they had both been released recently from sentences that they were serving.  In each of their cases the motivation for the offences was their addiction to drugs and the need to obtain money to buy more.  In each of their cases, and particularly in the case of Vance Bailey, non‑custodial sentences had been imposed in the past in the hope that they could be helped to stop offending.  Those non‑custodial sentences had not been successful.  Suggestions for non‑custodial alternative sentences were put before the judge on this occasion in the pre-sentence report, as the probation officer believed that there may be hopeful signs.  That optimism was described by the judge as "the triumph of hope over experience".  He was entitled to reach that view on the records of these two men.
12.	The issue for us is whether the judge was justified in passing a sentence which was as much in excess of the guideline as these sentences were  to reflect the previous offending of these two men.  
13.	It was conceded before the judge that he was entitled, because of their records, to pass sentences outside the guidelines.  The court was bound to treat the previous convictions of these men as aggravating features of the offences by virtue of section 143(2) of the Criminal Justice Act 2003, and the judge was also entitled to pass a deterrent sentence under section 142(1)(b) of the same act.  These offences, as I have said, were committed not long after their release from prison.  
14.	However, it has been made clear in this court on a number of occasions that the sentence must bear some relation to the offences themselves. For example we refer to the case of R v Darren Langley [2011] EWCA Crim 2471, and the judgment of Lord Justice Hughes, where, addressing this particular problem, he said  at paragraph 17:
"It(the sentence)  must bear some proportionate relationship to the offence committed and the circumstances of the defendant."
15.	We have had to ask ourselves whether, in all the circumstances, these sentences of 42 months are proportionate to the offences which were committed.
16.	While the threat to the security guard undoubtedly makes this offence a good deal more serious than it would normally have been, we do think that the judge  increased the sentence to reflect the previous records to a greater extent than was proportionate.  Giving the appellants  credit of a third for their pleas of guilty,  we think that the appropriate sentence would have been, in each case, one of 30 months' imprisonment.  Accordingly, we quash the sentences passed by the learned judge and  substitute  sentences of 30 months.