Imprisonment - Length of sentence

R v Flanders: Court of Appeal, Criminal Division (Lord Justice Richards, Mr Justice Keith, Mr Justice Nicol): 20 September 2011

Section 153 of the Criminal Justice Act 2003, so far as material, provides: '(1) This section applies where a court passes a custodial sentence other than one fixed by law or... imposed under section 225 or 226. (2) Subject to section 51A(2) of the Firearms Act 1968 (c 27), sections 110(2) and 111(2) of the Sentencing Act [section 29(4) or (6) of the Violent Crime Reduction Act 2006] and sections 227(2) and 228(2) of this act, the custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'

The defendant, aged 44, entered a dwelling home through a small window around midnight on 1 July 2011. The victims, a mother, father and a child were asleep upstairs at the time. The following morning, the child awoke to find his Xbox games console missing. Other items, including a television, a camera, a briefcase had been stolen the total value of which was £770.

Police officers traced the defendant from a shoe print in the house and he was arrested.

The defendant, who had a substantial number of previous convictions for offences of dishonesty, pleaded guilty to burglary on re-arraignment and some two-and-a-half weeks prior to the start of the trial. At the sentencing hearing, the judge found that the only way to effectively protect the public from the defendant was to impose the maximum sentence justified for the offence upon him. The judge took a starting point of about six-and-a-half years and he gave 'some' credit for the late plea without specifying how much. The defendant was sentenced to five years' imprisonment, less time spent in custody on remand. He appealed against sentence.

He submitted, inter alia, that the judge had erred in principle in choosing to impose the maximum sentence which he had found to be justified for the offence in the light of the fact that section 153(2) of the Criminal Justice Act 2003 (the 2003 act) provided that, save certain exceptions, the custodial sentence had to be 'the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence...', and given that section 111(5) of the Powers of Criminal Courts (Sentencing) Act 2000 provided for a minimum term of three years for a third domestic burglary, unless such a sentence would be unjust.

It was submitted that the sentence was manifestly excessive where the guidelines of the Sentencing Guidelines Council recommended a reduction of 25 % for a guilty plea. The appeal would be allowed.

It was clear that the protection of the public for further offences was a proper sentencing objective to be considered by the sentencing judge. However, section 153(2) of the 2003 act stipulated that a judge had to choose a sentence of the shortest term commensurate with the offence.

In the instant case, the judge had erred in principle in holding that the maximum sentence was justified for the offence. That was not in accordance with the statutory requirement under section 153(2) of the 2003 act. The instant case was not one where damage had been done to property. The victims had been oblivious to the burglary. In all the circumstances, the appropriate sentence was five years' imprisonment. A 20% reduction for a late plea was appropriate.

The sentence of five years' imprisonment would be quashed and substituted by a sentence of four years' imprisonment, less time spent in custody on remand.

Craig Harris (assigned by the Registrar of Criminal Appeals) for the defendant.