2018/00579/A1
Neutral Citation Number: [2018] EWCA Crim 1508
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  9th  May  2018

B e f o r e:
LORD  JUSTICE  TREACY

MR  JUSTICE  EDIS

and

HER  HONOUR  JUDGE  MUNRO  QC
 (Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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STEPHEN  SIMPSON

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Mr A D Smith appeared on behalf of the Appellant 

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J U D G M E N T
Wednesday  9th May  2018

LORD JUSTICE TREACY:  I shall ask Mr Justice Edis to give the judgment of the court.

MR JUSTICE EDIS:
1.  Stephen Simpson is 20 years old.  On 16th November 2017 he pleaded guilty before the magistrates to a series of offences.  He was then committed for sentence, pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of four offences of burglary, contrary to section 9(1)(b) of the Theft Act 1968 and pursuant to section 6 of the Sentencing Act 2000 in respect of an offence of taking a motor vehicle without consent and an associated offence of using it without insurance.

2.  On 11th January 2018 in the Crown Court at Sheffield he was sentenced to concurrent terms of two years' detention for the burglary offences and to a consecutive term of four months' detention for taking the vehicle without consent.  The total sentence was, therefore, 28 months' detention in a young offender institution.  A disqualification from driving for 18 months was imposed for the insurance offence.

3.  In answer to a specific request for clarification from counsel for the appellant after sentence was passed, the judge said that he had taken into account the custodial sentences imposed on the offences of burglary and the unlawful taking of the motor vehicle when fixing the length of the disqualification.

4.  The facts of the offences were as follows.  All four burglary offences were committed between 6.30am and 7.30am on 1st October 2017 in a block of student flats in Sheffield.  Two of the flats entered were occupied.  The appellant stole items from four flats.  He entered each flat through unlocked or insecure doors.  One victim, who was not at home at the time of the burglary, lost her Santander bank card.  In the second offence there were two victims who shared the same flat.  They were also not at home when he stole a MacBook Pro computer, which was worth £1,250, and an iPhone worth £500.  The third burglary also involved two victims who shared a flat.  They were both at home when he entered it.  He stole a wallet which had been left in the communal kitchen and took an iPhone from the bedroom in which a young woman was asleep when he entered.

5.  The victim of the fourth burglary was not at home when the appellant entered her flat, but other flatmates were.  He stole her iPad and her car keys, which he used to drive away her vehicle which was parked outside.

6.  Later that same day the mother of the last victim tracked the stolen iPad using a software application for that purpose.  It was traced to the appellant's parents' address in Barnsley.  The police attended and were permitted to search the premises by his parents.  The appellant was not present, but a stolen iPhone and MacBook were recovered.  The appellant's mother contacted him by phone and asked him to return to see the police, which he did.  When he arrived he had with him a stolen iPad.  He told the police on arrest that he had purchased these items in a public house on the previous evening at around midnight.  A more comprehensive search of his bedroom revealed the stolen bank cards.  The car was found parked approximately 500 metres from his home and the car keys were discovered in an alleyway nearby.  In the car was one of the stolen iPhones.  The result of all this was that all the stolen items were recovered.

7.  When interviewed he declined to answer any questions.  But subsequently, when he was required to attend the police station, he made full admissions by way of a prepared statement.  

8.  Prior to this offending, the appellant was a man of good character who had been in work.  

9.  When the author of the pre-sentence report enquired as to why he had committed these offences, the appellant said that he had a gambling addiction which he had attempted to conceal and to address over the previous 18 months.  He said that on the night before he committed these offences he had lost £600 in a casino.  He said that he had not intended to steal anything, but had noticed that a door to the premises had been left open.  He then, he said, gave way to the impulse to solve his financial difficulties by committing these burglaries.  He expressed remorse and shame.  

10.  The judge noted that the appellant had been under the influence of alcohol on the previous evening and that he had accrued these gambling debts.  He said that the area where the premises were was awash with student flats, as would have been obvious to the appellant.  The judge said that the appellant had decided that there would be rich pickings in the student flats and held that for the purposes of the relevant guideline the appellant had deliberately targeted the premises where he committed these offences.  The judge said that the appellant had not cared whether or not the flats were occupied and had indeed entered two flats which were occupied.  The judge concluded that, taken together, the offences fell within the upper half of category 1 of the relevant guideline.  He said that the various mitigating features which he identified, namely the recovery of the property, the appellant's remorse and previous good character, brought the offences back down to the starting point in category 1, which was three years.  The judge then gave full credit for the early guilty pleas, reduced that term of three years' custody on each burglary offence by one-third to two years custody and imposed consecutively a term of four months for the taking of the motor vehicle.

11.  Mr Smith, who appeared for the appellant before the judge and who has argued his case attractively before us this morning, essentially takes the point that the categorisation of the burglary offences was an error.  He says that the finding that the premises had been deliberately targeted was not justified by the facts of the case, although he accepts that the number of offences which were committed would justify increasing the sentence above that which would be provided in the range which he says was the proper one, namely, category 2.  Category 2 has a starting point of one year's custody and a range of up to two years.

12.  In written grounds of appeal he also submits that the consecutive term of four months for taking a motor vehicle without consent was the maximum available in this case and that this was inappropriate for a young person of good character in the absence of any aggravating features relevant to that offence.  He also submits in writing – and somewhat delicately in oral argument – that in the circumstances the sentence could and should have been suspended.

Discussion and Decision
13.  One occupier was at home in her flat which was entered when she was asleep in bed.  Her bedroom was invaded by the appellant.  Other people were present in one of the other flats.  The offences against occupied properties fall within the high harm category of the guideline, but there are no other factors putting the offences in that level.  The occupiers were asleep at the time, it would seem, and no direct confrontation, fortunately, resulted.  

14.  In our judgment, the judge's finding that the premises had been deliberately targeted is one which cannot be supported.  It is important to bear in mind the words used in the guideline to describe that feature of high culpability cases:

"Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation)."

In reality, almost all dwelling house burglaries are targeted in the sense that the offender chooses which premises to burgle because he or she hopes to find there moveable property which is valuable and which can readily be sold.  In our judgment, the deliberate targeting factor requires something more than this.

15.  If this had been a single case of burglary, a sentence within the category 2 range would, in our judgment, have been justified.  However, we agree with the approach taken by the sentencing judge that it was appropriate to deal with all four offences of burglary committed essentially on the same occasion as each other by the use of concurrent terms.  Therefore, the sentence on each requires adjustment to take account of the number of offences in order to reflect the total criminality involved.  As we have said, the category range for category 2 offences goes up to two years' custody.

16.  In our judgment, the decision of the judge that only an immediate custodial sentence could be justified, given the gravity of these offences of burglary, was plainly right.  It would, in our judgment, have been quite wrong to suspend the sentence.  

17.  However, we do not agree that, even taken together, the burglary offences should be placed in the upper half of category 1, which has a range of two to six years' custody.  The number of offences did require the court to go above the category 2 range before discounting for mitigation and then the guilty pleas.  The judge's approach was to give effect to mitigation by reducing the sentence before plea discount to the category 1 starting range, as we have said.  We consider that the judge's identification of the mitigating features was correct.  This was a first conviction which the appellant explained by pressing financial need owing to a gambling problem.  That last factor does not begin to justify the offending, but the lack of previous convictions and the fact that this was a first sentence of custody does require a reduction in the sentence.  Further, the fact that when he was caught the appellant co-operated with the police by returning the iPad when his mother asked him to means that he is entitled to some credit for the fact that the property was all recovered and returned safely to the young victims.  The value of electronic devices is not really their replacement cost but the disruption to studies and social life caused by the loss of contact details, messages and saved files.  Their safe return does matter.  

18.  We consider that the appropriate sentence in this case should have been above the category range, namely, more than two years; but a reduction back to that level was required to give effect to the mitigation.  That then required a further reduction of one-third because of the early guilty plea.  The sentences for the burglary offences should, therefore, be 16 months' detention to run concurrently on each.  

19.  We do not disagree with the imposition of a consecutive term to reflect the fact that the car was taken.  This was a very valuable item and its loss, even though it will have been insured, would have caused significant expense in replacement costs, had it not been recovered, and increased premiums had it been damaged or not recovered.

20.   However, the maximum sentence for this offence is six months' custody.  The sentence of four months, after full credit, therefore equates to the maximum sentence.  The appellant had never previously committed any offence.  The car was, in fact, recovered.  The offence is serious because it was committed in the context of the burglary of a dwelling house.  But that is why a consecutive term is to be imposed and it is important to avoid double counting.  We consider that the offence is properly marked by a sentence of three months, which must be discounted to reflect the guilty plea, to two months.

21.  We therefore allow the appeal, quash the sentence of two years and four months' detention imposed by the Crown Court and substitute concurrent sentences of 16 months' detention for each offence of burglary and a consecutive sentence of two months' detention for the unlawful taking of the motor vehicle.   The total sentence is therefore one of 18 months' detention in a young offender institution.

22.  We must return to consider the position in relation to the disqualification.  The disqualification from driving of 18 months was imposed for the insurance offence and custodial sentences were imposed for the other offences.  The disqualification was imposed under section 146 of the Sentencing Act 2000.  Section 147A of that Act does not apply because the disqualification from driving was imposed in respect of an offence for which no custodial sentence was passed.  Therefore, the court was required to consider the provisions of section 147B of the Sentencing Act 2000.  That provision precisely mirrors section 35B of the Road Traffic Offenders Act 1988.  That latter provision was, of course, the subject of detailed analysis and explanation by this court in R v Needham [2016] EWCA Crim 455, and the reasoning is directly transferrable into the present statutory context.  

23.  The judge imposed a disqualification from driving of 18 months and he imposed a sentence which presupposed that fourteen months of that time would be spent in custody.  Therefore, the effective disqualification which he imposed was one of four months.

24.  In all the circumstances of this case, although that is an unusual duration for a disqualification from driving, we consider that it is adequate to reflect the appellant's criminality.  This is not a case where there was any bad driving or any other aggravating feature of the unlawful taking, save that which we have already mentioned.

25.  In those circumstances a disqualification from driving for four months is adequate.  It is necessary for us to adjust the length of the disqualification appropriately so that it achieves that effect.  The adjustment is to add nine months to the effective term of the disqualification, meaning that the appellant will now be disqualified from driving for thirteen months.

26.  To that extent this appeal is allowed.