No: 201704682/A3 
Neutral Citation Number: [2017] EWCA Crim 2060
IN THE COURT OF APPEAL
CRIMINAL DIVISION
   Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 16 November 2017 
 
B e f o r e:

LORD JUSTICE HOLROYDE 

MRS JUSTICE CHEEMA‑GRUBB DBE
RECORDER OF MAIDSTONE 
(HIS HONOUR JUDGE CAREY DL)
(Sitting as a Judge of the CACD) 
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

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R E G I N A 
 
LEWIS GEORGE SHALLCROSS 

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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
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Mr J Polnay appeared on behalf of the Attorney General
Mr D Matthews appeared on behalf of the Offender

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J U D G M E N T
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1.	LORD JUSTICE HOLROYDE:  Lewis Shallcross was charged on indictment with three offences.  On count 1 he was charged with burglary, contrary to section 9(1)(b) of the Theft Act 1968, the allegation being that on 8th May 2016 he entered a house in Plymouth as a trespasser, and there attempted to inflict grievous bodily harm on a young woman called Ms Sheridan, then aged 19.  On count 2, he was charged with intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994, the allegation being that between 3rd and 6th March 2017, knowing or believing Ms Sheridan was a witness in proceedings for an offence, he did an act, "namely made verbal threats and rode past her home address which intimidated and was intended to intimidate [Ms Sheridan] intending thereby to cause the course of justice to be obstructed, perverted or interfered with." On count 3 he was charged with an offence, contrary to section 2 of the Road Traffic Act 1988, of dangerous driving of his motorcycle on 4th March 2017.  He pleaded not guilty to all these charges.  His trial in the Crown Court at Plymouth was initially listed for 22nd February 2017 but could not proceed on that day for want of court time.  It was later re‑listed for hearing on 18th September 2017.
2.	On the third day of the trial, at the conclusion of the prosecution evidence, Lewis Shallcross changed his plea on count 3 to guilty, albeit on a limited basis which the prosecution did not accept.  His trial continued on the other charges, his defence being one of alibi, and the jury subsequently convicted him of counts 1 and 2.  He invited the court to proceed immediately to sentence and the recorder who had presided over the trial rightly decided that it was not necessary to adjourn to obtain a pre‑sentence report.
3.	He sentenced Lewis Shallcross as follows.  On count 1, 4 years 6 months' imprisonment; on count 2, 6 months' imprisonment, concurrent; on count 3, 7 days' imprisonment concurrent, with an order that Lewis Shallcross be disqualified from driving for 5 years and until he passed an extended driving test.  All those sentences being concurrent, the total was 4 years 6 months.  
4.	Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient.  We grant leave.
5.	We are very grateful to both Mr Polnay, on behalf of Her Majesty's Solicitor General and Mr Matthews, on behalf of Lewis Shallcross, for their written and oral submissions which we have found very helpful. 
6.	Lewis Shallcross is now aged 22.  He had been convicted on two previous occasions.  In 2014, when he was aged 19, he pleaded guilty to offences of dangerous driving and driving without due care and attention.  He was made subject to a community order and disqualified for 18 months and until he had taken an extended driving test.  He never has taken that extended test and so was disqualified from driving at all times material to this case.  Then in July 2016 he pleaded guilty to a public order offence for which he was fined.
7.	The facts of the present case show a marked escalation in the seriousness of his offending.  We summarise the offences largely on the basis of what is set out in the Reference, starting with count 1.  At the end of March 2016 Ms Sheridan agreed to look after a bag containing £5,000 in cash overnight for Lewis Shallcross.  She stated that the cash was taken by a man referred to as "Chris". She said that when she told Shallcross about this, he stated that he would sort the matter out with Chris.
8.	On the evening of Saturday 7th May 2016 Ms Sheridan went into the city centre for an evening out with some female friends.  She bumped into Lewis Shallcross outside a nightclub.  He said: "If there wasn't cameras here, I'd beat you up right now". He added "you're lucky" a number of times.  There was no further contact between them in the city centre that night.  Ms Sheridan and her friends went back to her house at about 4.00 am on the Sunday.  She went to bed, sharing the bed with one of her friends, and fell asleep.
9.	As she slept Lewis Shallcross gained entry to Ms Sheridan's house.  He went into her bedroom.  He picked up a television described to us as being an old cathode ray television which was both large and heavy.  He took it off the chest of drawers on which it was standing and dropped it on Ms Sheridan's head.
10.	Ms Sheridan was taken to hospital.  She was found to have soft tissue swelling and bruising to her face, overlying both cheeks and the centre of her forehead.  Her jaw was tender on the right side, a tooth had been chipped and there was a superficial laceration to the bridge of her nose.  Her wounds were cleaned and the laceration was closed with steristrips.
11.	When the trial was adjourned in February 2017 Shallcross' bail was renewed, with a specific condition that he must not contact Ms Sheridan either directly or indirectly.  Counts 2 and 3 were offences committed whilst on bail and in breach of that condition.
12.	On 4th March 2017, as Ms Sheridan was being driven by her father to a friend's house in Plymouth, they had a chance encounter with Lewis Shallcross, who was riding a motorcycle.  He pulled alongside Ms Sheridan's vehicle and shouted:  "You're fucking dead". He then tailgated Ms Sheridan's vehicle in a dangerous manner before pulling away at speed, performing a wheelie as he did so.  He pulled onto a side road.  Unintentionally, the vehicle in which Ms Sheridan was a passenger took the same route.  There was an altercation outside a shop when two of Shallcross' friends ran towards Ms Sheridan's vehicle.  Her father drove into a residential street in an effort to lose Shallcross.  However, when he returned to his route, Shallcross was again present and repeatedly shouted "come on" towards Ms Sheridan.  He then rode his motorcycle away along the pavement at speed.  His driving was described by an independent witness who saw it as "manic".
13.	On the following day, 5th March, Lewis Shallcross rode his motorcycle to the area of Ms Sheridan's home address.  She was not present, but her father gave evidence that Shallcross shouted to him: "Be here in an hour, I'll be back in an hour".
14.	The court was informed that as a result of the various offences Ms Sheridan had felt compelled to leave not only her home but also the city in which she grew up.  In her evidence at trial, she gave some brief details of the impact of the assault upon her but became visibly upset when asked to describe her injures.
15.	The friend who had been beside her at the time of the count 1 offence said that the incident had left her totally traumatised.  She kept thinking about what could have happened to her as well as to Ms Sheridan.  Her general practitioner had prescribed medication.  She had received counselling.  She had to take sick leave from her job with consequent loss of earnings.
16.	Mr Matthews, who represented Lewis Shallcross at trial, as he does before this court, accepted that the burglary offence came within the most serious category in the sentencing guideline applicable to burglary offences and that it had a number of aggravating features.  In mitigation, he relied on Shallcross' young age, on the absence of any previous offence of a similar kind or of comparable seriousness, and on the fact that, by good fortune, no very serious injury had in fact been caused to Ms Sheridan.  Mr Matthews submitted that although the jury had found proved an intention to cause grievous bodily harm, that intention can only have existed for a very short time, because the use of a television as a weapon had not been followed by any further violence.  As to counts 2 and 3, Mr Matthews emphasised that events had begun with a chance encounter rather than anything planned by Shallcross. The recorder accepted all of those submissions.
17.	In his sentencing remarks the recorder said this at page 2D: 
"You knew that your victim was present in that home when you broke in, you knew that she would be asleep in bed. At the time you attacked her, she was asleep.  You used a weapon, a heavy TV, deliberately to inflict serious bodily harm upon her.  Those are the most serious aggravating circumstances that I can contemplate in an offence such as this."  
A little later at page 2G, he said: 
"In my judgment the aggravating features in this case necessitate me to impose a custodial sentence, in excess of the starting point under the guidelines, and in all the circumstances of the case, given the aggravating features, which I have mentioned, the very minimum sentence that I can pass upon you, for the offence of burglary, is one of 4½ years' imprisonment."
He then went on to impose the concurrent sentences to which we have referred in respect of counts 2 and 3.
18.	For Her Majesty's Solicitor General, Mr Polnay submits that both the individual sentences and the total term of imprisonment were unduly lenient.  In relation to the offence of burglary, charged in count 1, it was conceded, as we have indicated, that that was a category 1 offence under the guideline in relation to burglary offences.  Mr Polnay points out that for such an offence the guideline gives a starting point of 3 years' custody and a range from 2 to 6 years.  The guideline permits an upward adjustment from the starting point where there are aggravating features and Mr Polnay submits that here there were several: a weapon was used at night, with intent to cause grievous bodily harm, to inflict injury on a woman who was particularly vulnerable because she was asleep and who had to leave her home as a result.
19.	Given the terms in which the recorder had described the count 1 offence in his sentencing remarks, in the passage which we have quoted, Mr Polnay submits that the interests of justice require the imposition of a sentence in excess of that provided for by the offence range of the Definitive Guideline.  But Mr Polnay also invites attention to the guideline for the offence of wounding with intent.  He points out that the jury here must have been sure that Lewis Shallcross intended to cause grievous bodily harm and it was not in dispute that he did in fact cause some injury.  Mr Polnay submits that in terms of this guideline Shallcross would arguably be guilty of a category 1 offence, because a weapon was used and the victim was particularly vulnerable as she was asleep.  The starting point would therefore be 12 years' custody and the range 9 to 16 years.  Even if the offence was placed into category 2, the starting point would be 6 years and the range 5 to 9.
20.	We should emphasise that the learned recorder had not been invited to take this approach.  His attention had been drawn only to the burglary guideline.
21.	As to counts 2 and 3, Mr Polnay submits that the intimidation cannot be regarded as an isolated act as it took place over two days.  The first encounter was by chance, but the second occasion must have been premeditated.  There was no actual violence but the threats included a threat to kill, and on the first occasion the circumstances included dangerous driving on the public highway by an offender who has a previous conviction for that type of offence.  The impact of the offences on Ms Sheridan was substantial.  Moreover, the offence was committed in breach of conditions of bail, in relation to a serious offence against the same victim.
22.	Mr Polnay invites attention to the decision of this court in R v Smith [2011] 2 Cr App R(S) 118.  He submits that the sentence on count 2 was too short, and ought in any event to have been ordered to run consecutively to the burglary sentence.  He accepts that it was correct in principle for the sentence on count 3 to be concurrent with that on count 2, but submits that a term of 7 days' imprisonment simply fails to mark the true gravity of the offence.  He reminds us, as is now common ground, that the learned recorder fell into error in ordering an extended driving test.  Lewis Shallcross was already subject to such an order from his earlier conviction 2014 and it was not appropriate to make a further order to the same effect.
23.	Mr Matthews, for his part, emphasises that the recorder was in the best position to assess the overall criminality having presided over the trial.  He suggests that that is a particularly significant feature here, because there were some curious features of the evidence.  He points out that the prosecution did not charge Shallcross with an offence wounding with intent, and submits that it would therefore be inappropriate to look at anything other than the guideline for the offence which was charged, namely burglary.  He asks the court to note that there had been no incidents during the initial lengthy period of remand on bail, and relies on that to support his submission that counts 2 and 3 should be viewed as Shallcross' instinctive reaction after a chance encounter.  He emphasises the mitigating features. which we have mentioned, of comparatively young age and the absence of any comparable previous conviction.  He submits that the total sentence did properly reflect the overall seriousness of the offending.
24.	We have reflected on those submissions.  We start by considering the application of the Sentencing Guideline for burglary offences.  We bear in mind that Lewis Shallcross is a young man, who does not have a serious record of previous convictions, has not previously committed an offence similar to this burglary, and importantly, has not previously received a custodial sentence.  We nonetheless have no doubt that the sentence imposed on count 1 was unduly lenient.  As the recorder himself observed, this was a very serious example of this type of offence.  It involved a vicious attack on a sleeping woman in her own home.  Shallcross entered her home as a trespasser intending to cause her grievous bodily harm, and it was only a matter of good fortune that her physical injuries were much less serious than they might have been.  The psychological consequences for Ms Sheridan were severe.  Her friend was also seriously affected.  
25.	In our view, such an offence merited, after trial, a sentence in excess of four‑and‑a‑half years' imprisonment, even if it stood alone.
26.	As to counts 2 and 3, even accepting that the initial encounter with Ms Sheridan was not planned by Shallcross, this was serious offending which threatened the integrity of the criminal justice process.  The jury were sure that the count 2 offence of intimidation., was committed with intent to intimidate the victim of his earlier offence, who was of course a key witness against him, and with intent to pervert the course of justice.  The offence of dangerous driving was not the most serious example of its kind, but it was a type of offence which he had committed before and it was committed as part of his attempt to intimidate a witness at a time when he was disqualified from driving.  We take into account that the sentences on counts 2 and 3 were ordered to run concurrently, not only with each other but also with the sentence on count 1, notwithstanding that they were committed several months after that offence and in breach of bail.  Accordingly the sentence on count 1 reflects the overall criminality.  With all respect to the recorder that total sentence was, in our judgment, much too low.
27.	We now turn to the aspect of the case which was not raised before the recorder, namely the submissions made by Mr Polnay as to whether it is appropriate, in circumstances such as these, for a sentencing court to look at the guideline for offences of assault as well as the guideline for offences of burglary.
28.	The Sentencing Council's Definitive Guideline on sentencing for burglary offences contains a section devoted to domestic burglaries such as this.  It is an offence-specific guideline which, in accordance with the Sentencing Council's duty under section 121 of the Coroners and Justice Act 2009, describes different categories of offence.  Section 125 of that Act provides in material part as follows:  
"Sentencing guidelines: duty of court 
 (1)Every court—
(a)must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and 
(b)must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2)Subsections (3) and (4) apply where—
(a)a court is deciding what sentence to impose on a person ('P') who is guilty of an offence, and 
(b)sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) ('the offence‑specific guidelines').
(3)The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender's case includes—
(a)in all cases, a duty to impose on P, in accordance with the offence‑specific guidelines, a sentence which is within the offence range, and 
(b)where the offence‑specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range; but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.
(4)Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's case."
29.	The offence of burglary, contrary to section 9 of Theft Act 1968, may be committed in a number of different ways. Summarising that section, the offence may be committed by a person who enters a building as a trespasser, with intent to steal, to inflict grievous bodily harm or to do unlawful damage.  It may be committed by a person who, having entered a building as a trespasser, steals or attempts to steal, or inflicts or attempts to inflict grievous bodily harm.  It was common ground, in the court below, that the category in the domestic burglary guideline which most resembles Lewis Shallcross' case is category 1.  However, that guideline seems clearly to have been drafted with a focus on the more familiar type of offence, in which the burglar steals or intends to steal.  The factors relevant to the assessment of harm and culpability are almost all directly related that type of offence.  Although the factors identified as indicating greater harm include "violence used or threatened against a victim", that seems to relate primarily to an offence of burglary and theft, in the course of which violence is used or threatened against the householder.  The same may be said of one of the factors indicating higher culpability:  "knife or other weapon carried (where not charged separately)".
30.	Moreover, the levels of sentencing which the guidelines establishes do not appear to have been intended to take into account the inflicting of or attempt to inflict grievous bodily harm.  As we have noted, the range for a category 1 domestic burglary goes up to 6 years.  In marked contrast there is a separate section of the same guideline which is concerned with offences of aggravated burglary, that is offences of burglary in which the burglar has with him a weapon of offence, a firearm, imitation firearm or explosive.  For a category 1 offence of that type the guideline has a starting point of 10 years and a range from 9 to 13 years.  We have already referred to the levels of sentencing established by the guideline for offences of wounding with intent.
31.	Of course, both aggravated burglary and wounding with intent are offences which carry a maximum sentence of life imprisonment, in contrast to the maximum sentence of 14 years' imprisonment for domestic burglary.  We nonetheless think it clear that the domestic burglary guideline was not drafted with a focus on the type of burglary with which we are concerned in this case.
32.	That is not, of course, to say that the burglary guideline is irrelevant in a case of this nature.  On the contrary, section 125 of the 2009 Act plainly requires the sentencer to follow it, unless satisfied that it would be contrary to the interests of justice to do so.  But as this case shows, there may be cases in which the conduct properly charged as burglary, contrary to section 9(1)(b) of the Theft Act could also be charged as actual or attempted wounding with intent, or causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1868.  The difference between the possible charges would be that only the burglary charge would require proof of the element of entry into a dwelling as a trespasser, an element which would plainly be a serious aggravating feature of a section 18 offence.  In some circumstances it will be contrary to the interests of justice for a burglar who inflicts, attempts or intends grievous bodily harm to be sentenced less severely than an offender whose violence or attempted violence does not involve trespass in a home.  It follows, in our judgment, that there will be cases in which the guideline for offences of violence may also be relevant to the offender's case.  
33.	The conclusion we draw is that in a case of burglary, in which the offender inflicts or attempts to inflict or intends to inflict grievous bodily harm, the sentencer is required to follow the burglary guideline.  But in doing so, and in particular in considering whether the interests of justice require a departure from the sentencing range, the sentencer is entitled to consider relevant features of the guideline for offences of assault.  In doing so the sentencer must keep very much in mind the differing maximum sentences for the different offences.  The sentencer must also take particular care to ensure that the offender is not sentenced as if convicted of a more serious offence, which could have been but was not charged.
34.	Applying those principles to the present case, we come to the following conclusion.  The offence of burglary was so serious that viewing it in isolation, it would be contrary to interests of justice for the sentence to be limited to 6 years' custody.  Having regard to the terms of the indictment the jury must have been sure that Lewis Shallcross not only intended to inflict grievous bodily harm but attempted to do so.  It is therefore permissible, in our view, to have regard to the level of sentencing established by the assaults guideline, suitably adjusted to reflect the fact that Shallcross was guilty of attempting to cause grievous bodily harm rather than actually doing so.
35.	Making every allowance for his young age and bearing in mind that the physical injury actually caused fell well below the grievous bodily harm which was intended, we take the view that if that charge had stood alone, a sentence of less than 7 years' imprisonment after trial could not be justified.
36.	The other offences add significantly to the overall criminality, in particular, because they were committed on bail and in breach of a bail condition specifically designed to protect the victim of his earlier offence.  Taking those offences together but in isolation from count 1, they would merit, after trial, a sentence of 18 months' imprisonment.  In principle, the sentencing for those two offences should be consecutive to the sentence on count 1.
37.	We have very much in mind the principle of totality and for that reason alone, we make a reduction in each of the sentences we have indicated as appropriate, had certain offending been viewed in isolation.  
38.	We must make a consequential adjustment to the length of the period of disqualification from driving, applying the principles set out in R v Needham & Ors [2016] EWCA Crim 455; [2016] 2 Cr App R(S) 26.  The appropriate discretionary period is two‑and‑a‑half years.  To that must be added an extended period in respect of count 3 of 3 months and an uplift, in respect of counts 1 and 2, of 3 years 1 month, making a total period of disqualification of 5 years 10 months.  As we have indicated it is not appropriate also to require an extended driving test.
39.	In those circumstances, we quash the sentences imposed below as being unduly lenient.  We substitute for them the following:  on count 1, 6 years' imprisonment; on count 2, 9 months' imprisonment consecutive to the sentence on count 1; on count 3, 6 months' imprisonment concurrent with the sentence on count 2 and an order the offender be disqualified from driving for 5 years 10 months.
40.	Thus the total sentence of imprisonment is increased to one of 6 years 9 months. 

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