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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McInerney & Anor v R [2002] EWCA Crim 3003 (18 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/3003.html Cite as: [2002] EWCA Crim 3003

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HARROW CROWN COURT (HHJ MOLE QC) AND
STAFFORD CROWN COURT (HHJ MCEVOY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 December 2002

The Lord Chief Justice:

INTRODUCTION

1. 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 offence

Domestic 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.

Research

6. 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 burglary

111. - (1) This section applies where –

(a) a person is convicted of a domestic burglary committed after 30^th 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 30^th 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 over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment;

(b) in relation to a person who is under 21 at that time, a sentence of detention in a young offender institution.

[This section is printed as amended, as from a day yet to be appointed, by the CJCSA 2000, s.74, and Sched. 7, para. 191 (involving the omission of italicised words, insertion of words in square brackets).]"

8. We have found the Report useful in devising the guidelines. However, we are conscious that a degree of caution has to be exercised when using the results of a survey of members of the public as to what sentence is appropriate. When this court decides to frame or revise a sentencing guideline, one, but only one, of the considerations it is required to have regard to is "the need to promote public confidence in the criminal justice system" (Crime and Disorder Act 1998, s.80 (3)(d). Among the other requirements is the cost of different sentences and, importantly their relative effectiveness is preventing re-offending. Even as to public confidence, it is debatable the extent to which the public's confidence in the criminal justice system will be promoted by sentences which do not take into account the prospect of preventing re-offending. As is now well known there is an extremely high level of re-offending by those released from convictions for offences such as domestic burglary. Furthermore, the Prison Service accepts that there is little it can achieve in the way of turning offenders from crime during the course of a sentence of up to 12 months.

9. Courts have also to take into account the fact that the present crowded state of the prison system has resulted in extensive use of executive release for those who are sentenced for four years or less. In introducing the Release of Short Term Prisoners on Licence (Amendment of Requisite Period) Order 2002 in the House of Lords on 25 November 2002 Lord Falconer of Thoroton stated:

"At present prisoners serving sentences of between three months and under four years may be released on home detention curfew for up to 60 days before their normal release date, subject to serving one quarter of their sentence in custody. That means that the full 60-day period applies to all prisoners sentenced to periods of eight months or more. The order will increase that maximum to 90 days, still subject to prisoners serving a quarter of the sentence period in custody. In practice therefore, the full 90-day period will apply to all prisoners serving sentences of one year or more."

". . . home detention curfew has been very successful in providing prisoners with a smooth and more effective reintegration back into the community, enabling prisoners to be released from prison early while still subject to restrictions placed on their liberty. Increasing the curfew period will allow them to make that transition over a longer period and will help them resume employment or training at an earlier stage. "

10. The pressures on our prisons and the extent to which it is possible to address an offenders criminal behaviour during a prison sentence are not matters which the public can be expected to be aware. This is confirmed by the Report itself (page 3). Where it is stated:

"People think that sentences are out of touch and that their sentences are far too soft." (Hough and Roberts 1998) The evidence on which this assessment rests is that the public is often ignorant of crime trends and current sentencing practice; they are critical in part because they underestimate the degree to which imprisonment is imposed, and when asked what sentence should be imposed (burglary scenario being used as the test) they often propose a sentence less than that actually imposed (Mattinson and Mirrlees-Black 2000).

11. The Report also refers to the fact that respondents to the British Crime Survey (To see the report in full, download The British Crime Survey 2001 PDF 1.2Mb, from the Home Office Website) had overwhelmingly favoured the use of community sentences over youth custody for first time juvenile burglars and sizeable proportions of respondents are prepared to consider non-custodial sentencers for juvenile burglars who are persistent offenders.

12. The research carried out indicated that there was "a large mismatch between the type of sentence respondents want to impose and that they think would be imposed by the court. … In fact, 64% of respondents would give a less severe sentence than that which the court actually imposed, 13% would give a sentence close to the sentence actually given (that is within 25% of the length of imprisonment) and 18% would give a more severe sentence (page 21). Unfortunately, the research found that as many as 87% of respondents believe the sentence that would be given out by the court is less severe than the sentence that was actually given by the court." (page 22)

13. The research does, however, reveal that the publics are "intolerant of repeat offending". This it considers should carry a mandatory prison sentence. The reason for this being that burglary is an intrusive act likely to have long term effect on the victim. (p71) This is already the attitude of the courts. The effect of the research does not therefore indicate any clear desire for heavier sentencing than those passed at present being imposed by the courts.

14. In relation to section 111 of the 2000 Act, it is important to recognise that, as the Panel point out, its affect is to create a presumption that the sentence should be one of at least a three year imprisonment. If the offender can show that there are specific circumstances which relate to the offences or the offender which make that sentence unjust in all the circumstances then the presumption will be rebutted.

15. In R v Harvey [2002] 1 Cr App R (S) 368 this court, presided over by Lord Bingham CJ considered what would constitute such specific circumstances in the case which was before them that involved the crime (Sentences) Act 1997 and a person convicted of a Class A drug offence. The court said (at p371):

"The purpose of the section is, in the absence of specific or particular circumstances which would render it unjust to do so, to oblige the court to impose the prescribed custodial sentence. This means that Parliament has chosen a term of 7 years as the standard penalty on a third drug trafficking conviction meeting the conditions in sub-section 1. The object of the section quite plainly is to require the courts to impose a sentence of at last 7 years in circumstances where, but for the section, they would not or might not do so. If that were not the intention of the section it is in our judgment very difficult to see what the intention of the section was."

16. We respectfully agree with the sentiments expressed in that paragraph and recognise that they apply equally to section 111. However, that does not preclude situations arising where it would be unjust to impose a sentence of three years, even where the offender qualifies. It may be helpful to give examples of the type of situation where a three-year sentence may be unjust. The sentence could be unjust; if two of the offences were committed many years earlier than the third offence, or if the offender has made real efforts to reform or conquer his drug or alcohol addiction, but some personal tragedy triggers the third offence or if the first two offences were committed when the offender was not yet 16. As we read section 111 it gives the sentencer a fairly substantial degree of discretion as to the categories of situations where the presumption can be rebutted. This approach is supported by the decision of this court in the case of Offen [2001] 1 WLR 253. Understood in this way section 111 can be regarded as reflecting the current sentencing practice of the courts in relation to those who are convicted of burglary on three separate occasions even where the statutory requirements do not apply.

The Panel's Proposals

A Standard Burglary

17. In making their proposals relating to domestic burglaries of the classes identified in paragraph 1 of this judgment, the Panel helpfully make clear that although they "have not adopted the results of the public opinion survey" they have taken into account public attitudes in deciding what is for sentencing purposes a "typical" or as they prefer to say a "standard" domestic burglary. A standard domestic burglary is a burglary which has the following features:

i. It is committed by a repeat offender;

ii. it involves the theft of electrical goods such as a television or video;

iii. the theft of personal items such as jewellery;

iv. damage is caused by the break-in itself;

v. some turmoil in the house, such as drawers upturned or damage to some items occurs;

vi. no injury or violence, but some trauma is caused to the victim.

 

18. Although the Panel do not say this specifically, we assume that the theft of the electrical goods or the personal items are alternative and the standard burglary does not need to have all of the listed features. Some of the features can be sufficient to bring the offence within the same category. It is in this sense that we use the term 'standard burglary' in this judgment.

19. The width of the definition of burglary in section 9 of the Theft Act 1968 underlines the fact that this court can do no more than provide guidelines. The application of the guidelines must be subject to all the circumstances of the particular case and sentencers in applying the guidelines must tailor their sentence to meet those circumstances.

Aggravating and Mitigating Features

20. Having established what they regarded and what we also treat as a standard burglary the Panel went on in the conventional way to identify what they regarded as being aggravating and mitigating factors. In doing so the Panel took into account the responses from the Report. These factors were not the same as those laid down by this court in Brewster. Nonetheless we consider that the factors identified by the Panel should be the ones that courts should now apply. Though they are to be treated as examples and not as an exhaustive list.

21. The Panel divided the aggravating factors into two categories. We consider this is helpful as long as it appreciated there is no clear line between the categories and they can overlap. The high-level aggravating factors are:

force used or threatened against the victim;

a victim injured (as a result of force used or threatened);

the especially traumatic effect on the victim, in excess of the trauma generally associated with a standard burglary;

professional planning, organisation or execution;

vandalism of the premises, in excess of the damage generally associated with a standard burglary;

the offence was racially aggravated;

a vulnerable victim deliberately targeted (including cases of 'deception' or 'distraction' of the elderly).

22. The medium-level aggravating features are:

a vulnerable victim, although not targeted as such;

the victim was at home (whether daytime or night-time burglary);

goods of high value were taken (economic or sentimental);

the burglars worked in a group.

23. An example of a case that could overlap the two categories, would be a case where the victim is especially old, say in his 90s but was not shown to have been targeted because of this. The Panel does not refer specifically to the number of offences in relation to which the offender is to be sentenced. The number of offences may indicate that the offender is a professional burglar which would be a high level aggravating feature but even if they do not fall within this category the number could still be at least a mid level aggravating feature. The fact that the offender is on bail or licence can also be an aggravating feature as can the fact that the offence was committed out of spite.

24. The Panel, rightly in our view, did not seek to indicate what percentage uplift should result from the presence of either the high-level or medium-level factors. They did, however, indicate, and again we would agree, that it is appropriate for the sentencer "to reflect the degree of harm done, including the impact of the burglary upon the victim whether or not the offender foresaw that result or the extent of that impact". If, of course the offender foresees a result of the offending behaviour then that increases the seriousness of the offence.

25. The Panel also identified features (again they should not be regarded as an exhaustive list) which obviously are appropriate to take into account in mitigating the seriousness of the offence. They are:

a first offence;

nothing, or only property of very low value, is stolen;

the offender played only a minor part in the burglary;

there is no damage or disturbance to property.

The fact that the crime is committed on impulse may also be a mitigating factor.

26. The Panel drew attention to the fact that the survey showed that for the public the time of the commission of the burglary was not itself significant. However, if it is committed at night, that makes it more likely that the premises are occupied. In addition, we would suggest that an intrusion into an occupied home must be more frightening to the occupants, if they find that they have intruders at a time when they are in the dark, particularly if they are woken from their sleep. A confrontation of the householder, by the burglar, could in our judgment amount to an aggravating feature.

27. We also agree with the Panel that it is necessary to take into account other factors including a timely plea of guilty. Where section 111 of the 2000 Act applies, the reduction is limited to 20% of the determinate sentence of at least three years.

28. In addition, the offender's age or state of health, both physical and mental can be a mitigating fact, so can evidence of genuine remorse, response to previous sentences and ready co-operation with the police.

29. We have already agreed that the fact that it is a first offence should be regarded as a mitigating factor. In the case of burglary so far as sentencing is concerned, we do consider that the offender's criminal record is, as was indicated in Brewster, of more particular significance. In judging the record it is of course necessary to take into account the type of offence for which the offender has previously been convicted and the number of offences which were considered on any particular occasion. It is of importance that the efforts which an offender has or has not made to rehabilitate himself. In the case of offences committed because the offender is an alcoholic or a drug addict, while the taking of drink or drugs is no mitigation, the sentencing process must recognise the fact of the addiction and the importance of breaking the drug or drink problem. This is not only in the interests of the offender but also in the public interest since so commonly the addiction results in a vicious circle of imprisonment followed by re-offending. When an offender is making or prepared to make a real effort to break his addiction, it is important for the sentencing court to make allowances if the process of rehabilitation proves to be irregular. What may be important is the overall progress that the offender is making. This is part of the thinking behind drug and treatment orders.

30. As the Panel pointed out, in relation to section 111 of the 2000 Act, there "are some first time burglaries which on their facts are so serious that a sentence of three years or more might be appropriate but, conversely some third, fourth or fifth time burglaries where a sentence lower than three years could properly be justified". (The lower sentence being achieved by the reliance on the exception to section 111.)

31. As to the appropriate sentencing under section 111 it has also to be borne in mind (again as the Panel observes) that an offender convicted of a single domestic burglary will accrue a qualifying conviction. Equally an offender convicted on one occasion of three burglaries who asked for another three burglaries to be taken into consideration will also only accrue once qualifying offence. The totality of the actual criminal behaviour is important.

The Startings Points Suggested by the Panel After a Trial

32. In relation to adult offenders, not taking into account any aggravating or personal mitigating factors or the discount for a guilty plea, in relation to a completed, as opposed to an attempted, burglary of domestic premises, divided their recommendations into four categories. We set out what they recommended in relation to each category (omitting the references to earlier cases since on examination we did not regard them as throwing additional light on the issues in relation to which they were cited) :

"(a) For a low level burglary committed by a first-time domestic burglar (and for some second-time domestic burglars), where there is no damage to property and no property (or only property of very low value) is stolen, the starting point should be a community sentence. . . . . Other types of cases at this level would include thefts (provided they are of items of low value) from attached garages or from vacant property. . . . .

(b) For a domestic burglary displaying most of the features of the standard domestic burglary [ see paragraph 17] above (theft of electrical goods and / or personal items, damage caused by the break-in, some turmoil in the house and some trauma to the victim), but committed by a first-time domestic burglar, the starting point should be a custodial sentence of 9 months. A case at this level would, on a guilty plea, be suitable for disposal in a magistrates' court. . . . The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of 18 months. When the offence is committed by an offender with two or more previous qualifying convictions for domestic burglary, the starting point is a custodial sentence of three years – i.e. the presumptive minimum now prescribed by law in these circumstances.

(c) In the case of a standard domestic burglary which additionally displays any one of the 'medium relevance' factors referred to in paragraph [22 above], but committed by a first-time domestic burglar, the starting point should be a custodial sentence of 12 months. The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of two years. When the offence is committed by an offender with two or more previous convictions for domestic burglary the starting point is a custodial sentence of three and a half years (42 months).

(d) In the case of a standard domestic burglary which additionally displays any one of the 'high relevance' factors mentioned in [paragraph 21], but committed by a first-time domestic burglar, the starting point should be a custodial sentence of 18 months. The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of three years. When the offence is committed by an offender with two or more previous convictions for domestic burglary the starting point is a custodial sentence of 4 and a half years (54 months). The presence of more than one 'high relevance' factor could bring the sentence for an offence at this level significantly above the suggested starting points."

33. The suggested starting points in paragraphs (b) to (d) indicate a substantial increase in the length of the custodial sentence each time the offender commits a further qualifying burglary. However, the Panel proposes that this incremental increase in sentencing levels should slow significantly after the third qualifying conviction in order to retain a degree of proportionality. In addition, it will be observed that although divided into sub-paragraphs the Panel's starting points actually include more than four recommendations. We draw attention in particular to sub-paragraph (b). It will be seen that the starting points rise in clear stages until they reach the statutory minimum presumed under section 111. The process then continues in sub-paragraph (c) and (d).

OUR STARTING POINTS

34. As to the starting points contained in (d), we would endorse the recommendation of the Panel. We also endorse the non-custodial approach recommended in (a).

35. In relation to (b) and (c) we adopt a different approach. It is not so much a question of our parting company with the approach of the Panel that fits in conveniently with the automatic sentence provided for by section 111 of the 2000 Act, (while recognising that hitherto their approach would be regarded as being an appropriate approach to adopt), but our adopting a difference of emphasis.

36. An unqualified approach under sub-paragraphs (b) and (c) will reinforce the flaws in our present sentencing policies. Its effect on the present deeply depressing pattern of re-offending will be limited. That its effect should be limited is not surprising when the reality behind a prison sentence of 12 or for that matter 18 months is taken into account. The prisoner will be statutorily entitled to release after half of the sentence. Before the prisoner reaches that point release will in fact have occurred in accordance with the practice quoted by Lord Falconer in the passage from Hansard which we have cited.

37. We fully accept that there are some cases where the clang of the prison cell door for the first time may have a deterrent effect but the statistics of re-offending suggest that the numbers who will be deterred by their first experience of incarceration are not substantial. If they are not deterred by their first period of incarceration, then it becomes even less likely that a moderately longer sentence (which equally gives no opportunity for tackling re-offending behaviour) will achieve anything. We therefore have reservations to a ladder of increasing sentences with starting points 9, 12 and 18 months.

38. In saying what we have, we have not forgotten the importance of maintaining the publics confidence in the criminal justice system and protecting the public from offending behaviour particularly offending behaviour such as domestic burglary which causes the public great distress. On the contrary, it is our intention that the guidance that we give should provide greater protection than is provided at present. Here we refer to the report of the Social Exclusion Unit dated July 2002. The Summary sets out the following picture:

"1. Prison sentences are not succeeding in turning the majority of offenders away from crime. Of those prisoners released in 1997, 58 per cent were convicted of another crime within two years. 36 per cent were back inside on another prison sentence. The system struggles particularly to reform younger offenders. 18–20-year-old male prisoners were reconvicted at a rate of 72 per cent over the same period; 47 per cent received another prison sentence.

2. Despite falling in the 1980s, the reconviction rate rose again in the 1990s and has remained obstinately high in recent years. The factors behind this are complex, but it is possible to single out a number of changes over that period which may have contributed: these include an erosion in post-release support for short-term prisoners – those sentenced to less than 12 months; a change in benefit rules for prisoners; and the sharp rise in social exclusion, in areas such as child poverty, drug use, school exclusion, and inequality.

3. In fact, the headline reconviction figure masks a far greater problem for public safety. We know, for instance, that of those reconvicted in the two years following release, each will actually have received three further convictions on average. For each reconviction, it is estimated that five recorded offences are committed. At a conservative estimate, released prisoners are responsible for at least 1 million crimes per year – 18 per cent of recorded, notifiable crimes. And this takes no account of the amount of unrecorded crime that ex-prisoners, reconvicted or otherwise, will have committed.

The cost

4. Many of the costs of re-offending by ex-prisoners are not quantifiable, but can be devastating and long-term, and are frequently felt by the most vulnerable in society. Most obviously, there is the impact on victims, many of whom will be repeat victims, and on their families; also on communities, predominantly the most disadvantaged. In turn, where re-offenders are caught and imprisoned, a heavy toll is taken on their families and on their own lives.

5. The financial cost of re-offending by ex-prisoners, calculated from the overall costs of crime, is staggering and widely felt. In terms of the cost to the criminal justice system of dealing with the consequences of crime, recorded crime alone committed by ex-prisoners comes to at least £11 billion per year.

6. An ex-prisoner's path back to prison is extremely costly for the criminal justice system. A re-offending ex-prisoner is likely to be responsible for crime costing the criminal justice system an average of £65,000. Prolific offenders will cost even more. When re-offending leads to a further prison sentence, the costs soar. The average cost of a prison sentence imposed at a crown court is roughly £30,500, made up of court and other legal costs. The costs of actually keeping prisoners within prison vary significantly, but average £37,500 per year.

7. And yet these costs are only a fraction of the overall cost of re-offending. First, recorded crime accounts for between only a quarter and a tenth of total crime, and ex-prisoners are likely to be prolific offenders. They may, therefore, be responsible for a large proportion of unrecorded crime and its costs as well. Second, there are high financial costs to: the police and the criminal justice system more widely; the victims of the crimes; other public agencies who also have to pick up the pieces; the national economy through loss of income; the communities in which they live; and, of course, prisoners themselves and their families."

39. We also refer to two of the paragraphs dealing with the causes.

"12. Many prisoners' basic skills are very poor. 80 per cent have the writing skills, 65 per cent the numeracy skills and 50 per cent the reading skills at or below the level of an 11-year-old child. 60 to 70 per cent of prisoners were using drugs before imprisonment. Over 70 per cent suffer from at least two mental disorders. And 20 per cent of male and 37 per cent of female sentenced prisoners have attempted suicide in the past. The position is often even worse for 18–20-year-olds, whose basic skills, unemployment rate and school exclusion background are all over a third worse than those of older prisoners.

14. There is a considerable risk that a prison sentence might actually make the factors associated with re-offending worse. For example, a third lose their house while in prison, two-thirds lose their job, over a fifth face increased financial problems and over two-fifths lose contact with their family. There are also real dangers of mental and physical health deteriorating further, of life and thinking skills being eroded, and of prisoners being introduced to drugs. By aggravating the factors associated with re-offending, prison sentences can prove counter-productive as a contribution to crime reduction and public safety."

40. To maintain a situation, which makes no contribution to changing this picture, will not increase but reduce the confidence of the public in the criminal justice system.

41. There is another aspect of the problem of which the Panel were acutely aware and that is the fact that as a result of the prison system being so grossly overcrowded, the Prison Service can not achieve the limited assistance which could otherwise be provided during a short sentence particularly if it is coupled with continued training and supervision after release from prison. The Panel referred to a global increase of around 10,800 and the fact that they had been informed that the long term prison projections "currently assume that the domestic burglary provision will lead to a 4,500 increase in the prison population, although this figure will have to be revised over time." In relation to that figure the Panel appropriately comment; "This must be a matter of grave concern given the current unprecedented numbers in prison". Now it is being projected that the prison population will reach almost 110,000 by the end of the decade (Home Office statistics published December 2002).

42. The Panel in an annexe set out figures from the 2000 British Crime Survey which show that it is estimated that there were 760,000 incidents in 1999 in which a burglar gained entry into a home and just under 3/4 of those involved theft of property. These are very high figures but they actually represent a fall in the number of burglaries by 21% between 1997 and 1999. The annexe also gives figures as to the pattern of sentencing in 2000. Figures indicate that in the magistrates' court of the 4,800 offenders who were sentenced, 29% were sentenced to immediate custody and the average sentence length was 5.3 months. In the Crown Court of the 10,227 offenders who were sentenced, 77% were given immediate custody and the average sentence was 20.9 months in 2000, 90% of the sentences being between six months and three years.

43. Against those gloomy statistics, there is positive evidence emerging as to what can be achieved by punishment in the community. Here the Panel said:

"29. But reform of sentences would not, of itself, be enough. Major changes to the way in which those inside and outside the criminal justice system operate are necessary to ensure that the system is focusing resources sufficiently to deal with the right people, using robust systems of accountability and joint working, and delivering in innovative ways. Long-term change is needed to ensure that all those dealing with prisoners and ex-prisoners make the maximum possible impact on re-offending."

Guidance

44. We therefore propose that instead of adopting a stepped approach as suggested by the Panel in sub-paragraphs (b) and (c) in cases in which courts would otherwise be looking to starting point of up to 18 months imprisonment, the initial approach of the courts should be to impose a community sentence subject to conditions that ensure that the sentence is (a) an effective punishment and (b) one which offers action on the part of the Probation Service to tackle the offender's criminal behaviour and (c) when appropriate, will tackle the offender's underlying problems such as drug addiction. If, and only if the court is satisfied the offender has demonstrated by his or her behaviour that punishment in the community is not practicable, should the court resort to a custodial sentence. It will be pointless to try and identify all the factors that will indicate that a community disposal is not a practical option but they may relate to the effect of the offence on the victim, the nature of the offence or the offenders record.

45. The increased use of community punishment that this approach involves will set the Probation Service a real challenge but this is a challenge that they are now in a position to accept. The public will benefit from this approach as it requires appropriate action to tackle the offending behaviour of the offender. It will also result in a saving in the expense of imprisonment. The public will also benefit because it should help to reduce the demands placed on the Prison Service by ever increasing numbers.

46. The new approach to sentencing we are setting out (in relation to cases in which otherwise a sentence of 18 months imprisonment or less would have been imposed following a trial) should and is intended to provide better protection for the public and to result in some reduction in the use of custody. Its ability to do this will be increased when the Criminal Justice Bill, which is now before Parliament, is passed and a greater number of sentencing options are available to magistrates and judges.

47. If, of course, a prisoner does not comply with the requirements of a community punishment and, in particular, if he commits further offences during the currency of that sentence, then he should be re-sentenced. We accept the fact that if an offender has not complied with the requirements of a community punishment this will be a strong indicator that a custodial sentence and possibly a substantial sentence is necessary.

48. Where a custodial sentence is necessary, then it should be no longer than necessary. In the case of repeat offenders and aggravated offences long sentences will still be necessary as indicated by the Panel in sub-paragraphs (b) (c) and (d) above. As to the incremental increases, we agree with the Panel, that the increase in sentencing levels should slow significantly after the third qualifying conviction. It is necessary to retain a degree of proportionality between the level of sentence for burglary and other serious offences.

Juvenile Offenders

49. As to Juvenile offenders, the Panel stated its advice in the following terms:

"36. Exceptionally, since domestic burglary is one of the offences which may attract a sentence of long-term detention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000, a young offender may be committed by the youth court for trial in the Crown Court with a view to such a sentence being passed. A sentence of long-term detention is available in respect of any offender aged 10 to 17 inclusive who is convicted of domestic burglary.

37. Where an offender who is now aged 18 or over has two qualifying previous convictions for domestic burglary as a juvenile, a third alleged domestic burglary must be tried in the Crown Court, and the presumptive minimum sentence is a custodial sentence of three years. Although section 111 does not apply until the offender has attained the age of 18, would seem to follow that for an offender who is under 18 but is charged with a third domestic burglary, a custodial sentence in excess of 24 months (the maximum term available for a detention and training order) will be the likely sentence and so the youth court should generally commit the case to Crown Court for trial with a view to sentence under section 91."

50. We generally endorse this approach subject to reiterating more strongly in relation to juveniles what we have already said. The Youth Justice Board is spearheading effective punishment in the community and it is important that, where appropriate, juvenile offenders are dealt with in Youth Court and not the Crown Court.

Generally

51. We draw attention to the important powers of court to make restitution and compensation orders. When appropriate, those orders should always be made.

52. The final point we make before turning to the two specific appeals which are before us, is to remind magistrates' courts and their clerks that, because of the provisions of section 111 of the 2000 Act, when a defendant charged with domestic burglary has two or more qualifying previous convictions, then the latest charge is only triable on indictment.

William Patrick James McInerney

53. On 19 March 2002 McInerney pleased guilty before magistrates to a single offence of burglary and was committed to the Crown Court for sentence. On 22 May 2002 at the Crown Court at Harrow he was sentenced to five years imprisonment. Mr Justice Poole gave him leave to appeal indicating that "a substantial sentence of custody was inevitable but I am granting leave in order that counsel may present their argument as to its length".

54. The facts can be shortly summarised as follows:

On 1 September 2001 the appellant entered the home of the victim who was aged 93 by impersonating a police officer. The appellant showed him a false warrant card and stated he was checking to see if the victims insurance was in order. He then went in to every room in the house purporting to be making notes. He also spoke to someone on his mobile telephone. At one stage he made an excuse to go back upstairs alone for a short time. When the victim became suspicious and confronted him, the appellant invited him to speak to his boss on the telephone, the appellant having arranged for a collaborator to be available to do so. The appellant then locked the victim in the kitchen. When the victim said he was going to call the police the appellant having said that he was the police removed a battery from the appellant's telephone. The appellant did press against the victim with his hands but only to move him aside. The appellant then left the house with about £140 cash and a telephone battery.

55. The appellant was later identified through a fingerprint and when interviewed on 28 February 2002 fully admitted the offence. In interview he said he had picked the house at random and not targeted the victim. In any event he thought the victim was about 60 odd years old and not 93. He emphasised that he had unlocked the door before he left the house. As to the security of the identification badge which he used for identification purposes, he had replaced the photograph with his own and made it look as though it was a police badge.

56. Originally, the appellant made admissions of 49 other similar offences of burglary and asked for them to be considered. Subsequently he declined to have them taken into consideration and no action, as far as we are aware has been taken to charge him with any of those offences. This is notwithstanding that the admissions were made before his solicitor and there was a statement in his own hand on the TIC form. The judge, after hearing legal argument, indicated that he would sentence the appellant on the basis this was a single one-off offence but that it was pre-planned.

57. In sentencing the appellant the judge said it was a very bad burglary, (we agree) it was not a spur of the moment offence but premeditated. He had with him the badge, upon which he had taken the trouble to change the photograph to look like a police officer, wore clothes like a police officer and pretended to speak to a police colleague on the telephone.

58. The judge referred to the fact that the elderly sometimes betray their presence by physical manifestations such as handrails on the outside of premises and possibly by other aids such as intercoms that they may conspicuously have on their doors. He added: "Another aggravating factor is that I cannot accept, indeed I am not certain I am even invited to, that it is by mere mischance that you picked upon an elderly person. I am quite prepared to accept that you did not know that this elderly person was 92 although one may be very sceptical about the proposition that had he shown you his birth certificate that you would have immediately backed away rather than thinking that you had a soft target in front of you."

59. The judge was in no doubt that the appellant was targeting the elderly and once you start targeting the elderly it is extremely likely that occasionally you are going to come across the very elderly. The judge also rightly regarded the fact that the appellant was impersonating a police officer was an important factor. The judge indicated that he was giving full credit for the appellant indicating he was pleading guilty at an early stage. He also took into account the fact that full admissions had been made.

60. Finally, the judge referred to the fact that the appellant was still only 22 and repeatedly said he was sorry. Though the judge was not persuaded that the appellant's remorse was particularly genuine as opposed to regret at being caught.

61. As to the appellants record, he has nine findings of guilt and ten previous convictions for a total of thirty nine separate offences, including two offences of burglary which were not from a dwelling, the last being in July 2000 for which he received two years imprisonment. A number of other convictions were for offences of dishonesty, including one for which he received a 4 month prison sentence for handling stolen goods. This is not, therefore, a case to which section 111 applies.

62. Having regard to the nature of the offence and the age of the victim there can be no doubt this was a case where there was no alternative to a custodial sentence. The only issue is how long that custodial sentence should be. As to this Miss Adrienne Knight made very effective submissions on behalf of the appellant. She relied on the fact that McInerney had had an unfortunate background with a father who was involved in crimes as a way of life and who also physically abused the appellant throughout his childhood.

63. She drew attention to the fact that the appellant's offending behaviour started at exactly the time he left the family home which he had only done because he could not put up with the abuse any longer and that he had lived rough or with travellers ever since. She relied on the full admissions at interview and the early plea which at least showed remorse and the fact that the appellant did not seek to take advantage of the advanced years of his victim.

64. The most powerful argument of Miss Knight is that the judge had taken too high a starting point of at least eight and a half years. We consider that it is more likely that the judge took a starting point of seven and a half years. However, even then this appears to be too high a starting point even bearing in mind the aggravating factors in this case namely the age of the victim and the unattractive deceit adopted to carry out the offence.

65. The conclusion we have come to is that allowing for the appellant's age and his plea, the appropriate sentence is one of three and a half years imprisonment. We quash the present sentence and substitute that sentence.

66. Before we leave this case we do regret the fact that apparently the question of prosecuting the appellant for the other offences he was at one time asking to be taken into consideration has never been appropriately considered by the prosecution. We emphasise that this was not in any way a matter for which counsel for the Crown (who appeared before us) was in any way responsible.

Stephen James Keating

67. Stephen James Keating pleaded guilty before magistrates to two offences of burglary and was committed to the Crown Court for sentence. At Stafford Crown Court he was sentenced on 3 May 2002 to four years imprisonment for each offence concurrent.

68. In giving leave Mr Justice Mackay said, "Four years after an early plea and only one of the Sentencing Advisory Panel's medium-level aggravating features suggest this (appeal) is arguable despite six previous burglaries committed."

69. The facts can be shortly summarised as follows:

The appellant is 33 years of age. On 15 February 2002 between 6.30pm and 8.30pm the appellant entered a house whilst the occupiers were away for a weekend. Having made sure the premises were unoccupied he removed a panel from the backdoor to gain entry. He stole electrical items, jewellery and paintings to the value of £4,600. £1,700 was later recovered. Damage was caused to the entry point and to some interior locks which were forced. The second offence was committed on 26 February 2002. At about 2.30am the appellant noticed that the door to another dwelling house was open. When he saw the open door he took the opportunity to enter the house. He did not go beyond the kitchen because he realised when he saw a wallet and a mobile phone in a handbag in the kitchen that the property must have been occupied. He did, however, take those items with him when he left. Their value was approximately £155.

70. The following day police officers searched the appellant's address and discovered some other stolen property. He was arrested and made full admission of both burglaries. He was then taken to another address which was the subject of an offence of burglary which he asked to be taken into consideration together with another offence of a different sort.

71. The appellant has a number of previous convictions; three findings of guilt and nine convictions involving a total of thirty one offences, including four previous convictions for seven offences of burglary, the last in August 2001, for which he received 4 months imprisonment. He had previously, in 1991, received a three-year sentence for two burglaries. Other of his convictions were for offences of dishonesty.

72. The probation officer indicates that this appellant has "clearly poor coping mechanisms for his offending" but did not assess him as presenting a serious risk of harm to the public.

73. We accept in his case the submissions made on his behalf by Miss Anna Price. Those submissions can be summarised by stating that again too high a starting point must have been taken. We agree and therefore quash the sentence of four years imprisonment and substitute a sentence of three years imprisonment concurrent in relation to each offence; taking the two offences into consideration.

74. Both appeals are therefore allowed to the extent indicated.