McInerney & Anor v R, Court of Appeal - Criminal Division, December 18, 2002, [2002] EWCA Crim 3003

Resolution Date:December 18, 2002
Issuing Organization:Criminal Division
Actores:McInerney & Anor v R
 
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Case Nos: 2002/3547/W5Neutral Citation Number:[2002] EWCA Crim 30032002/2857/W3IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CRIMINAL DIVISION)ON APPEAL FROM QUEEN'S BENCH DIVISIONHARROW CROWN COURT (HHJ MOLE QC) ANDSTAFFORD CROWN COURT (HHJ MCEVOY) Royal Courts of JusticeStrand, London, WC2A 2LLDate: 18 December 2002Before :THE LORD CHIEF JUSTICE OF ENGLAND AND WALES,MR JUSTICE SILBERand MR JUSTICE GRIGSON- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Miss Adrienne Knight (instructed by Brook Oliver, Solicitors) for McInerneyMiss Anna Price (instructed by Parry Carver, Solicitors) for KeatingMr Mark Dennis (instructed by the Crown Prosecution Service) for the CrownHearing dates : 9 December 2002- - - - - - - - - - - - - - - - - - - - -JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)The Lord Chief Justice:INTRODUCTION1. These appeals have been listed before us so that we can give a guideline judgment as to the appropriate sentencing levels in the case of offences of domestic burglary. The guidance that we have decided to give is the result of the advice of the Sentencing Advisory Panel ("the Panel") dated 9 April 2002. It only applies directly to sentences in connection with domestic burglaries where the trespass is accompanied by theft or an intention to steal. 2. Guidance was previously given by this court, presided over by Lord Bingham Chief Justice, as to sentencing in cases of domestic burglary in R v Brewster & Others [1998] 1 Cr App R (S) 181. The court in that case made some comments as to the seriousness of offences of domestic burglary which we regard as still being highly relevant and we therefore repeat them: "The offenceDomestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured: because they may have fewer possessions, they are the more seriously injured by the loss of those they do have.The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value. Or the offence may be deliberately directed at the elderly, the disabled or the sick; and it may involve burglaries of the same premises. It may sometimes be accompanied by acts of wanton vandalism.The record of the offender is of more significance in the case of domestic burglary than in the case of some other crimes. There are some professional burglars whose records show that from an early age they have behaved as predators preying on their fellow citizens, returning to their trade almost as soon as each prison sentence has been served. Such defendants must continue to receive substantial terms of imprisonment. There are, however, other domestic burglars whose activities are of a different character, and whose careers may lack any element of persistence or deliberation. They are entitled to more lenient treatment.It is common knowledge that many domestic burglars are drug addicts who burgle and steal in order to raise money to satisfy their craving for drugs. This is often an expensive craving, and it is not uncommon to learn that addicts commit a burglary, or even several burglaries, each day, often preying on houses in less affluent areas of the country. But to the victim of burglary the motivation of the burglar may well be of secondary interest. Self-induced addition cannot be relied on as mitigation. The courts will not be easily persuaded that an addicted offender is genuinely determined and able to conquer his addiction. Generally speaking domestic burglaries are the more serious if they are of occupied houses at night; if they are the result of professional planning, organisation or execution; if they are targeted at the elderly, the disabled and the sick; if there are repeated visits to the same premises; if they are committed by persistent offenders; if they are accompanied by vandalism or any wanton injury to the victim; if they are shown to have a seriously traumatic effect on the victim; if the offender operates as one of a group; if goods of high value (whether actual or sentimental) are targeted or taken; if force is used or threatened; if there is a pattern of repeat offending. It mitigates the seriousness of an offence if the offender pleads guilty, particularly if the plea is indicated at an early stage and there is hard evidence of genuine regret and remorse."3. Lord Bingham indicated that the effect of the previous authorities on sentencing for domestic burglary showed: "(1) that burglary of a dwelling-house, occupied or unoccupied, is not necessarily and in all cases an offence of such seriousness that a non-custodial sentence cannot be justified;(2) that the decision whether a custodial sentence is required, and if so the length of such sentence, is heavily dependent on the aggravating and mitigating features mentioned above and, usually to a lesser extent, the personal circumstances of the offender;(3) that the courts, particularly the higher courts, have generally reflected in their sentences the abhorrence with which the public regard those who burgle the houses of others."4. Lord Bingham also commented on the case of Edwards and Brandy (May 9, 1996 unreported) and indicated that he had reservations about that decision. In particular he commented that "it places too much emphasis on past cases and seeks to establish sentencing brackets where none is possible or desirable". We recognise the wisdom of these remarks and we emphasise that they must be borne in mind when considering the guidance which we give in this judgment. 5. The Panel have given their advice, notwithstanding the decision in Brewster partly because the Panel is of the opinion that more specific guidance, in particular as to the factors that increase or reduce the seriousness of offences of burglary could be helpful. While we accept that more specific guidance is desirable, especially in the case of offences that are at the less serious end of the scale, we emphasise that the guidance we are about to give must be read subject to the need to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary, but generally. Research6. Burglary is an offence which gives rise to particular public concern in the way clearly described by Lord Bingham. For this reason the Panel commissioned research into public attitudes to sentencing in relation to domestic burglary. That survey was completed in September 2000 and resulted in the report, Sentencing of Domestic Burglary ("the Report"). As the Chairman makes clear in his Introduction to the Report, it was the Panel's view that it made an important contribution to the Panel's "understanding of the general public attitude to sentencing" for offences of domestic burglary. 7. The Panel were also influenced in giving their advice by section 111 of the Power of Criminal Courts (Sentencing) Act 2000 (formerly section IV of the Crime (Sentences) Act 1997). That section provides: "Minimum of three years for third domestic burglary111. - (1) This section applies where -(a) a person is convicted of a domestic burglary committed after 30th November 1999;(b) at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and(c) one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30th November 1999.(2) The court shall impose an appropriate sentence [a sentence of imprisonment] for a term of at least three years except where the court is of the opinion that there are particular circumstances which - (a) relate to any of the offences or to the offender; and(b) would make it unjust to do so in all the circumstances.(3) Where the court does not impose such a sentence, it shall state in open court that it is of that opinion and what the particular circumstances are.(4) Where -(a) a person is charged with a domestic burglary which, apart from this subsection, would be triable either way, and(b) the circumstances are such that, if he were convicted of the burglary, he could be sentenced for it under subsection (2) above,the burglary shall be triable only on indictment.(5) In this section "domestic burglary" means a burglary committed in respect of a building or part of a building which is a dwelling.(6) In this section "an appropriate custodial sentence" means -(a) in relation to a person who is 21 or...

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