R v Rebecca Saw and Others
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 2009 |
| Neutral Citation | [2009] EWCA Crim 1 |
| Docket Number | Case No: 2008/06058/A6 (1) 2008/05601/A6 (3) 2008/05627/A1 (4) 2008/05958/A7 (5) 2008/05001/A4 (6) |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 January 2009 |
[2009] EWCA Crim 1
The Lord Chief Justice Of England And Wales
Lord Justice Latham Vice President Of The Court Of Appeal Criminal Division and
Lord Justice Hughes
Case No: 2008/06058/A6 (1)
2008/05468/A4 (2)
2008/05601/A6 (3)
2008/05627/A1 (4)
2008/05958/A7 (5)
2008/05001/A4 (6)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE MACHIN (1)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
HIS HONOUR JUDGE HOOTON (2)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
HIS HONOUR JUDGE MACHIN (3)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE BEECH (4)
ON APPEAL FROM THE CROW COURT AT DERBY
RECORDER BERLIN (5)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
HIS HONOUR JUDGE TAYLOR (6)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr G Huston for Saw (1): Mr R Townsend for the Respondent
Mr A Hendron for Tete-Djawu (2): Mrs M McLean for the Respondent
Mr C Hart for Smith (3): Mr R Townsend for the Respondent
Mr S Natas for Kassa (4): Mrs M McLean for the Respondent
Mr C.A. Hallas for Younis (5): Mr D.M. Outterside for the Respondent
Mr N Soppit for McPhee (6): Mr D.M. Outterside for the Respondent
Hearing dates: 1 st December 2008
The Lord Chief Justice of England and Wales:
This is the judgment of the court, to which we have all contributed.
These cases are concerned with the sentences imposed on adult defendants guilty of burglary of occupied premises, the homes of the victims. The essential feature of each submission was that in the context of the guideline decision in R v McInerney: R v Keating [2003] 2CAR (S) 240, the sentence was excessive. For reasons which follow, each of the five applications is refused and the single appeal is dismissed.
R v McInerney : R v Keating was promulgated on 18 December 2002, almost exactly 6 years ago. It replaced the earlier guidance offered in R v Brewster and others [1998] 1 CAR (S) 181. It was heavily influenced by research conducted by the Sentencing Advisory Panel (the Panel), completed in September 2000. Nothing is gained by denying that it was controversial. On 14 January 2003, Lord Woolf CJ on behalf of the court, issued a Statement the purpose of which was “to correct inaccurate comments which are repeatedly being made as to the guidelines. Correction is vital, since, if the inaccuracies stand uncorrected, the public will be left with a totally wrong impression”. The judgment itself was not modified, altered or retracted, but something of the nature of the controversy may be gauged by Lord Woolf's emphatic observation that “the judgment is not a charter to offenders to commit burglary as has also been suggested. Nor is it a body blow to the efforts of the police to detect offenders who commit burglary”.
R v McInerney : R v Keating is not a definitive guideline for the purposes of sections 170 and 172 of the Criminal Justice Act 200The Sentencing Guidelines Council has incorporated its effect in a publication of its own, which accurately reflects the effect of its decision. In practical terms the guidance has proved problematic and misunderstandings about its effect still persist. Thus, on 24 October 2008, in R v Wong, the Crown Court at Leicester was considering sentence on a man who had been committed for sentence by Magistrates for two dwelling house burglaries and who asked for two offences to be taken into consideration. Without commenting on the decision itself, which is not before us, we note that the Recorder observed that he wanted
“the public to know that I can't send you to prison because of the guidelines that I am given…I want to send you to prison but I can't because I am restricted by what I am told to do in cases like this….I have got to give you a community sentence. And as I said earlier the public must think we have all gone mad. But that is what I have got to do”.
We would be surprised if on proper analysis the guidance in R v McInerney: R v Keating compelled this observation, but the fact that it was made demonstrates not only that the guidance has been controversial, but that it has also proved difficult of application. We can conveniently outline some of the major difficulties. The starting point in R v McInerney: R v Keating used the expression 'starting point' in a sense different from that which has since become conventional. It is nowadays used to identify a notional point within a broad range, from which the sentence should be increased or decreased to allow for aggravating or mitigating features, rather than the lowest point in the range. It was for this reason that the decision may have been understood to suggest that the normal sentence even for a repeat offender should be non-custodial. Furthermore, the concept of the “first time burglar” was itself problematic, not least because what was described as the “standard” burglary assumed that the defendant had already been convicted of burglary on previous occasions. The division of the aggravating features into higher and medium level was also insufficiently flexible in practice, and the omission of potentially aggravating but unspecified features from what appeared to be a comprehensive list meant that, on occasions, the defendant's true criminality was not fully addressed.
For these reasons, pending definitive guidance on the subject of domestic burglary which may be issued by the Sentencing Guidelines Council, we have re-examined R v McInerney: R v Keating and offer this fresh guidance.
The Approach
The starting point must always – we emphasise, always —be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. The concept suggests impregnability and defiance against intrusion. In the phrase coined by Sir Edward Coke in 1628, when compiling his Third Institute of the Laws of England, our homes should be our “safest refuge”, where above all we should enjoy secure tranquillity and untroubled peace. Something precious is violated by burglary of a home, and those who perpetrate this crime should be sentenced and punished accordingly.
During the last few years dwelling house burglary as recorded by the police has steadily fallen from a peak in the mid 1990s. That is, of course, very welcome. In any event, however, over 280,000 domestic burglaries were still recorded by the police during 2007/2008. In other words, the number of domestic burglaries remains very significant. The most likely targets for dwelling house burglary are those homes where security measures are absent, at least in part, no doubt, because many of these householders simply cannot afford the cost. Some of these homes may not include property or objects of any great financial worth, but for those whose material possessions are limited in number and value, the disappearance of what in a prosperous home would be treated as relatively small items will be correspondingly more significant. In any event the sense of disturbance and distress suffered by the home owner is not quantifiable in bare economic terms. Therefore in the sentencing decision particular focus is required on the impact of the offence on those living in the burgled house. Whether or not the dwelling house burglar has any specific intention to cause harm, he runs the risk that the victim or victims may suffer serious adverse consequences. Where this happens, sentences should be reflective even of unintended consequences.
We repeat the observations by Lord Bingham CJ in R v Brewster and others [1998] 1CAR (S) 181, and adopt them as our own.
“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 know 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 day time to find that it has been burgled.”
As Lord Bingham recorded, and like every other offence, the intrinsic seriousness of each burglary offence may vary hugely. The offence is committed by a man of good character who, passing an open window on a summer's day, puts his hand inside the window and steals a bottle of water. Without trivialising the...
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