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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 >> Nichols, R v [2018] EWCA Crim 1342 (12 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1342.html Cite as: [2018] EWCA Crim 1342

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 April 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

LORD JUSTICE SIMON:

1. On 30th November 2017 at the Crown Court at Isleworth, the appellant, aged 50, pleaded guilty to a single charge of burglary. On 7th December he was sentenced by His Honour Judge Moore to a term of three years and four months. He appeals against that sentence with the leave of the single judge.
2. On 17th October 2017 the victim of this crime, Jane Dawson, aged 55, left her home in Thornbury Avenue, Isleworth. It was not until 23rd October that her partner went to the house and discovered that it had been broken into, with a door prised open. There was damage to the property and various items, including jewellery, keys, wallets, credit and other cards had been stolen. Forensic examination of a glove belonging to Ms Dawson found in the kitchen revealed blood with a match to the appellant. When he was arrested he said that he dealt in scrap metal and he could have disposed of the glove which could have been picked up anywhere. When it was explained to him that it was in fact a glove belonging to the victim, he offered no further explanation for his blood on it.
3. A victim impact statement from Ms Dawson sets out what she describes, entirely justifiably, as the "profound and wide-ranging" effect of the crime on her: emotionally, physically, in terms of her personal relationships and her sense of security in her own home, and the effect on her working life. She also described the loss of the items of jewellery and personal effects:

The sentimental value however far exceeds any figure you can put on the items. For example, there was a sapphire and diamond gold engagement ring that was stolen. This belonged to my late mother who I lost when I was 10 years old. This was the only real tie I still had with her and now it has been taken from me. Equally there were two pewter tankards that were engraved with my father's World War 2 name and number. He recently died and again these had an unknown sentimental value to me. The opal jewellery was given to me as keepsakes for the birth of my children. The leaf earrings and locket were presents for my 18th and 21st birthday. The first world war love brooch was a gift for my great aunt from her fiancé just before he died in World War 1. All of the jewellery I have listed has sentimental value and I have only named five items here but all were gifts or were inherited and all meant something to me.

I have been asked whether my bank and store cards have been used since the incident and I can confirm that they have not because I cancelled them. This again is a long and drawn out process, waiting for replacements and so on. I am also worried about identity theft as the stolen cards can easily be used as a basis to steal further from me.

4. These were telling details of the effect of the appellant's selfish and criminal act. He was aged 50 at the date of sentence and had 39 convictions from 1980 when he was 13 to 2007. These included a large number of offences of dishonesty and violence, a non-dwelling burglary in 1981, wounding with intent and non-dwelling burglary in 2002 for which he was sentenced to a term of three years' imprisonment, and a non-dwelling burglary and attempted non-dwelling burglary in 2005. There was no previous conviction for dwelling burglary. However, materially on 1st October 2007 he received an indeterminate sentence of imprisonment for public protection for three offences of robbery and three offences of having a firearm with intent to commit an indictable offence, with a minimum term of three years for robbery with consecutive terms of one year for the firearm.
5. In passing sentence, the judge observed that the appellant had pleaded guilty at the Plea and Trial Preparation Hearing and was entitled to the appropriate discount of 25 per cent. He then set out the facts as we have outlined them. The victim Ms Dawson worked for a charity and was required to travel abroad on occasions. She had left her home and on her return had found it had been broken into and ransacked. The appellant had gone through her bedding, her children's personal effects and her office - everything that he could lay his lands on. He had gained access by going to the garden shed and using tools that he had found there. Both internal and external doors had been damaged, and various tools were found by the police on the staircase inside. A large number of items had been stolen. The assessed value was approximately £18,000, and about £1,000 of damage had been caused. The judge then referred to the contents of the victim's statement, to which we have already referred. The victim had stated that she felt violated. She had lived in the house for 25 years, now living alone. She had difficulty sleeping to the extent that she had been to a doctor and been diagnosed with stress. She found it difficult to concentrate, in particular with her work. This had clearly been an extremely traumatic event for her.
6. The judge referred to the Sentencing Council Definitive Guidelines for Burglary. Both counsel had agreed that it was a Category 2 offence with a starting point of one year and a range of a high community order up to two years. There was greater harm, the ransacking of the house, the trauma to the victim and the significant degree of loss, both economic and sentimental. It was not an offence of higher culpability because the only indicative factor would have been the carrying of items to facilitate the burglary and there was no evidence of this, although the appellant had undoubtedly gone into the victim's shed to look for tools, and those tools were used to gain entrance from the outside door via inside doors. In the judge's view the position was closely analogous to going equipped for theft. Looking at the whole picture of the offending, the judge was inclined to the view that it fell within Category 1 with a starting point of three years and a range of two to six years. If he were wrong in relation to that categorisation it was an upper Category 2 case. There were then two statutory aggravating elements which would significantly increase the sentence within the guidelines. First the appellant's previous convictions. He is a professional criminal with 37 convictions for 75 offences over a period of 37 years. He had three convictions for extremely serious offences. In 1997, possession of class A drugs with intent to supply, for which he received a term of three-and-a-half years' imprisonment. In 2002 for a section 18 wounding where he had stabbed someone he had been sentenced to a term of three years' imprisonment and in 2007 for three offences of robbery and having a firearm with intent to commit an indictable offence he had been sentenced to an indeterminate sentence for public protection with a minimum of three years. He also had a large number of other convictions for offences involving dishonesty, drug use and violence. He had, the judge said, used eight different names and seven different dates of birth to avoid detection should he be stopped and arrested. However, the judge recognised that he had no previous convictions for domestic burglary, although that was only part of the picture.
7. The second aggravating feature was that the burglary had been committed while on licence. He had been released on licence in relation to the robbery and firearms offences in 2015. He had then been arrested for other matters, faced trial and was acquitted. He was returned to custody on licence and was subsequently released again on 5th January 2017. He committed the domestic burglary nine months after his release and while on licence.
8. These two aggravating matters were sufficiently material, in the judge's view, significantly to increase the sentence for a Category 2 offence. With regard to personal mitigation there would be a 25 per cent discount for the guilty plea. Account was also taken of other matters advanced on the appellant's behalf. It had been said that he had demonstrated remorse, although he had shown no such sentiment in interview. He basically denied committing the offence and pleaded guilty when the scientific evidence in relation to his blood group and DNA was produced. That was not held against him. It was merely a factor that would not be taken into account to any significant degree. The judge then passed the sentence of 40 months' imprisonment.
9. Following a query from the trial advocate, the judge confirmed that the sentence included the full 25 per cent discount and stated that he was not going to indicate how he arrived at the figure of 40 months.
10. On this appeal Mr Butler puts the matter in this way. First, the judge erred in placing the offending in Category 1 in the absence of factors indicating higher culpability. The tools and the gloves belonged to the victim and there was no proper analogy with going equipped for theft. Second, in any event, whilst he acknowledges that the appellant has a poor record, he submits that the judge placed too much weight on the previous convictions which did not justify placing the offending within Category 1. Third, even if the offending could properly be categorised as category 1 offending there was nothing to justify a starting point of four-and-a-half years before credit for plea.
11. We have considered those submissions. We should start by saying that we consider that the judge was entirely right to identify a number of factors indicating greater harm. The ransacking of the property, the theft of items of particular personal value to the victim and the particular effect of the crime on the victim. We are also satisfied that the appellant's previous record and the fact that the crime took place when he was on licence were aggravating factors which justified characterising the crime as a Category 1 offence and placing it higher within the range, notwithstanding the lack of specific factors of higher culpability.
12. However, in our view the appropriate starting point within Category 1 before credit for the plea was a term of the order of 42 months and with 25 per cent credit to which he was entitled the sentence should have been a term of 30 months.
13. Accordingly, we quash the sentence of three years and four months and substitute a term of 30 months. To that extent the appeal is allowed.