No: 201800693 A4
Neutral Citation Number: [2018] EWCA Crim 1335 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
   Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 28 March 2018
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE GOSS 

HER HONOUR JUDGE TAYTON QC 
(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 
v 
JAMES ZAMMUTT‑COOK

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Mr G Hughes appeared on behalf of the Attorney General

Mr F Schofield appeared on behalf of the Offender

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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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J U D G M E N T
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LORD JUSTICE SIMON: 
1.   This is the Solicitor General's application to refer sentences passed at the Crown Court sitting at Chelmsford on 19th January 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  The sentences were terms of 29 months' imprisonment passed on the offender, James Zammutt‑Cook, now aged 37, by Her Honour Judge Lynch QC in respect of three counts of separate dwelling‑house burglary committed on 17th and 27th September and 18th October 2017.

2.  On 17th September 2017 the owner of a dwelling called Soham Lodge in Thetford (Mark Rose) attended the property, which was a substantial unoccupied dwelling set in 15 acres of land which was in the course of being renovated, with his wife in order to feed their sheep and take their dog for a walk.  As they approached the property they could hear running water from inside.  On entering they could see water flowing down the stairs and through the ceilings.  There was a smashed pane of glass in one of the downstairs windows and another window was open, through which entry appeared to have been gained.  A number of items had been moved or uncovered, but nothing had been taken.  However, throughout the property most of the copper piping and radiators had been cut away from the walls.  All the piping had been stacked outside the rooms but had not been taken.  It was this that had caused substantial water damage to the ceilings.  The cost of repairing the damage was not known at the time of sentence.  A blue hooded top was found which was seized and analysed.  Cellular material found on it had a DNA profile which matched the offender's.

3.  At approximately 10 am on 27th September, the occupier of a dwelling known as Dandelion Cottage in Wickham St. Paul near Halstead in Essex (Mr Henderson) was at home and in bed.  He works night shifts as a heavy goods vehicle driver.  He became aware of a noise which sounded like the movement of a person in the house.  Initially he assumed it was his house mate, Spencer White, coming home for lunch but when he looked at the clock he realised it was too early for that.  He got out of bed and opened his bedroom door, to be confronted by the offender, a complete stranger.  The offender looked at Mr Henderson and said: "All right mate", before turning round, running down the stairs and then into a waiting car.  Mr Henderson heard the engine revving and assumed there must have been a getaway driver.  He discovered that his wallet containing £120 in cash, his bank cards, driving licence, CPC card and a tachograph card had been taken.  

4.  Later that morning, at about 11.15, Holly Anderson was working in a local betting shop when the offender and another man (Declan White) entered.  She had seen them in the betting shop over the preceding three months.  They were there for about 90 minutes, and after the shop had closed in the evening a member of staff found a bank card and some identification belonging to Lewis Henderson in a bin.  These had been disposed of by the offender.  Holly Anderson located Mr Henderson via social media and informed him of what she had found, leading to the identification of the offender as the burglar.

5.  On 19th October 2017 the offender broke into a dwelling called White Gables in Griston, Norfolk, entering via a smashed lounge window.  The occupiers, Mr and Mrs Bartlett were on holiday in Corfu at the time, having left the property secure on the preceding Friday 13th October.  When they returned on 20th October they were met by their daughter who told them that they had been burgled the previous day.  In the course of the burglary, the offender took a significant quantity of jewellery, with an unknown value, but of substantial sentimental value, as well as some personal items.

6.   The offender asked the court to take into consideration 24 offences including domestic and commercial burglaries and thefts.  He had pointed out his involvement in these offences in the course of a drive around and a voluntary interview with police officers.  
There were no victim impact statements in the case.  

7.   The offender has 32 convictions for 52 offences including 27 acquisitive offences.  The most relevant of these were: 10th November 2004, burglary with intent to do criminal damage and non‑dwelling burglary committed on 15th April 2004; 14th September 2005, theft, shoplifting, committed on 10th September 2005; 1st November 2006, two burglaries, non‑dwelling and four offences to be taken into consideration, committed between September and October 2006; 6th December 2006, dwelling burglary committed on 10th August 2006, resulting in a supervision order; 4th July 2007, theft committed on 21st June 2007; 29th August 2007, five thefts, four from vehicles, committed in May 2007; 7th May 2008, theft of a bicycle committed on 8th April 2008; 2nd September 2008, theft committed on 6th March 2008; 5th December 2008, non‑dwelling burglary committed on 25th July 2008; 3rd April 2009, theft committed on 11th March 2009; 22nd September 2009, found on enclosed premises for an unlawful purpose committed on 18th September 2009; 24th November 2009, making off without payment committed on 20th November 2009; 17th March 2010, theft committed on 24th April 2009; 25th August 2010, dwelling burglary, committed on 19th November 2009, resulting in a sentence of 547 days' detention in a young offender institution; 11th September 2012, theft committed between June and August 2012; 8th October 2012, handling stolen goods committed on 5th September 2012; 28th January 2013, handling stolen goods committed on 25th November 2012; 19th August 2013, three dwelling burglaries and 79 offences taken into consideration, the burglaries committed in January 2013, resulting in a total sentence of 42 months' imprisonment.  The offender's appearances in court prior to 6th December 2006 had been in the Youth Court.
Mr Schofield, who appears for the Attorney General, submits that the antecedent record and the 24 offences taken into consideration demonstrate that the offender is a repeat burglar who typically steals cash, bank cards and jewellery, or targets non‑dwelling premises with the intention of the stealing led, copper or other marketable metals.  He accepts that the offender does not have an established offender pattern involving the targeting of occupied dwellings, nor confronting occupants.  

9.   An oral pre‑sentence report was provided to the court by a probation officer on 19th January 2018.  She told the court that the offender's acquisitive offending was linked to an addiction to class A drugs.  She concluded that he presented a high risk of further offending and a medium risk to the public while he continued to use crack cocaine.  Given his poor response to and failure to comply with previous orders, and after consultation with the offender's offender management team, the probation service concluded that he was not suitable for a non‑custodial sentence with a drug rehabilitation requirement. The probation service felt unable to support any community‑based sentence.  

10.  On 8th December 2017, the offender appeared before the judge for a pretrial preparation hearing.  He faced three counts charging the three burglary offences to which we have referred.  He pleaded guilty to each count and asked for 24 offences to be taken into consideration.  It is unnecessary to set out these offences in detail.  It is sufficient to say that the offences took place between 30th April and 24th October 2017 and they included four offences of theft, six offences of non‑domestic burglary and 13 offences of dwelling‑house burglary.  No basis of plea was advanced in relation to any of the guilty pleas and the case was adjourned for sentence.  

11.  On 19th January the case was listed for sentence before Judge Lynch.  In respect of the sentencing guidelines, the prosecution submitted that the burglaries on 17th September and 27th September 2017 were Category 2 burglaries, owing to the fact that there was a significant loss caused from the first offence and there was a getaway driver on the second, and the burglary on 19th October 2017 was a Category 3 burglary.  In mitigation it was submitted that the offender was genuinely remorseful, had not ransacked or vandalised the property on 17th September and at least some of the offences in the TIC schedule could not be linked to the offender but for his admissions.  

12.  The judge accepted that the offender was at least trying to remain abstinent from controlled drugs. She noted that he had been offered help in the past by the probation service and that he had repeatedly rejected these offers of help.  The judge properly recognised that he had committed a spate of burglaries which were serious offences because whatever the immediate loss in material terms, such crimes make people feel vulnerable in their own homes.  She accepted that he was not a professional burglar, although he was a prolific one.  She told the offender she was going to give him a chance and pass "a fairly lenient sentence."  She adopted a starting point of three years and discounted that sentence by 20 per cent to reflect his pleas of guilty.

13.  In his submissions on behalf of the Solicitor General Mr Schofield has referred to the Sentencing Council Definitive Guidelines for Burglary Offences, and Offences Taken into Consideration and Reduction in Sentence for Guilty Pleas.  So far as the three burglary offences were concerned, he submits that there were a number of aggravating factors identified in the burglary guidelines: the offender's previous convictions, the proper inference that the offences were committed whilst under the influence of crack cocaine and the number of burglary offences to be taken into consideration.

14.  The Solicitor General recognises, as did the judge, the mitigation of the offender's remorse and his demonstrated determination to address his drug addiction.  It is common ground that the offending triggered the operation of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the Sentencing Act") which required the imposition of a minimum term of three years for a third burglary offence after 20th November 1999 unless there were particular circumstances which would make it unjust to do so.  There has been no suggestion at any stage that it was unjust to start with the three year minimum term, or that on that basis the maximum credit for the guilty pleas was 20 per cent as set out in the guidelines on reduction in sentence for guilty pleas at page 7.

15.  Mr Schofield draws attention to the provisions of the guideline on Offences Taken into Consideration.  At page 2: 

When sentencing an offender who requests offences to be taken into consideration (TIC's), courts should pass a total sentence which reflects all the offending behaviour.  The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence.  

Later:
The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender’s overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings, demonstrates a genuine determination by the offender to 'wipe the slate clean'. 

16.  In conclusion, Mr Schofield submits that the imposition of 29 months' imprisonment was unduly lenient in that the notional sentence was set too low given the nature and quantity of offences for which the offender was to be sentenced, and the nature and quantity of offences to be taken into consideration.  The totality principle was not applied properly or at all, in the sense that all the sentences were ordered to run concurrently without any adjustment to the lead sentence.  The previous convictions of the offender, and his response to previous sentences were significant aggravating factors which were not adequately reflected in the sentence and too much emphasis was placed on the offender's personal mitigation.  

17.  Mr Hughes for the offender, submits that the although he might have been fortunate the sentences, although lenient, were not unduly so.  He acknowledges that the offender was heavily convicted.  However, he submits there is no basis for the view that he is a professional burglar or that he targets substantial homes.  He accepts the burglaries taken individually were Category 2 offences within the meaning of the burglary guidelines with a starting point of 12 months, but he points out that in respect of the offences taken into consideration, many of the crimes would never have been solved but for the offender's co‑operation and this indicated the steps he was taking to get a grip of his life.  In this submission he is supported by the passage from the guideline on Offences Taken into Consideration in the passage to which we have referred.

18.  All this was something the judge recognised.  Mr Hughes acknowledges that the offender fell to be sentenced in accordance with section 111 of the Sentencing Act and that in these circumstances the maximum credit to which he was entitled was 20 per cent.  However he points out that the judge paid careful regard to these restrictions on her sentencing options.  She started with a term of 36 months and gave 20 per cent credit for pleas and imposed a term of 29 months.  

19.  In conclusion, he argues that the judge was fully entitled, having heard the facts of the offender's antecedent history and the mitigation, to take a starting point of three years before giving appropriate credit and that the sentence was merciful but not unduly lenient.  The judge had considered all the material factors and reached a judgment to which she was entitled.

20.  In our view the overall sentence of 29 months was unduly lenient.  The offender had a very poor antecedent history which included domestic burglaries since 6th December 2006, as we have described, as well as the large number of offences of dishonesty.  He had received sentences of imprisonment including a previous section 111 sentence for a term of 42 months.  None of these sentences appears to have had any effect on his offending, other than to cause it to stop while he served custodial sentences.  

21.  The guideline on Offences Taken into Consideration indicates at page 4 under the heading "application" (paragraph 2) that having determined the starting point for the index offending, the offences taken into consideration "should generally be treated as an aggravating feature that justifies an upward adjustment from the starting point".  The guideline continues: "Where there is a large number of TICs it may be appropriate to move outside the category range although this must be considered in the context of the case and subject to the principle of totality."  

22.  The first domestic burglary offence had caused substantial water damage to the house.  The second involved a confrontation with the occupant and involved another participant.  The third involved loss of jewellery and other personal items.  Whether or not he was a professional burglar, the offender was certainly a prolific burglar as the offences taken into consideration demonstrated.  

24.  The judge recognised that the sentences were lenient and gave reasons for passing the sentence she did.  We acknowledge that judges can properly pass merciful sentences where the circumstances call for it.  However in our view the starting point of three years was significantly too low in view of the antecedent history, the nature of the offences themselves and the offences take into inconsideration, which reflected the offender's overall criminality.  There was mitigation available to him, as the Solicitor General has acknowledged but that mitigation was also available to him when he was sentenced in August 2013.  There comes a time when such mitigation ceases to have potent effect.  He had been given chances in the past and he had not taken them.  In our judgment the appropriate starting point was a term of five years and, with 25 per cent credit for his plea, the appropriate term should be a term of 3 years and nine months, or 45 months.  Accordingly we grant leave and substitute in place of each one of the sentences of 29 months a term of 45 months.