R v William Patrick McInerney; R v Stephen James Keating

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE,The Lord Chief Justice,and
Judgment Date19 December 2002
Neutral Citation[2002] EWCA Crim 2916,[2002] EWCA Crim 3003
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 2002/03547/W5,Case Nos: 2002/3547/W5
Date19 December 2002

[2002] EWCA Crim 2916

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London

WC2A 2LL

Before

The Lord Chief Justice of England and Wales

(The Lord Woolf of Barnes)

Mr Justice Silber and

Mr Justice Grigson

No. 2002/03547/W5

2002/02857/W3

Regina
and
William Patrick James Mcinerney
Stephen James Keating

MISS A KNIGHT appeared on behalf of THE APPELLANT McINERNEY

MISS A PRICE appeared on behalf of THE APPELLANT KEATING

MR M DENNIS appeared on behalf of THE CROWN

Monday 9 December 2002

THE LORD CHIEF JUSTICE
1

: I wonder if we could hear from Mr Dennis, first? Mr Dennis, we have received some information from the Registrar. I will tell you what we have been told and see whether it is correct. Following consultation with the Crown Prosecution Service, you have no submissions to make on the Sentencing Advisory Panel's advice. However, you are present in court to represent the Crown. You have full knowledge of the facts of both appeals and the Panel's advice should the court require any assistance from you. Does that mean that the Crown Prosecution Service have considered at an appropriately high level the advice of the Panel and specifically instructed you that they agree with every word?

2

No, it does not. I have made enquiries of those I have been able to, to see whether any views are being put forward. I have found no views put forward, nor anyone who has taken charge of considering the matter.

THE LORD CHIEF JUSTICE
3

: That is very helpful, Mr Dennis. That is what I feared may be the situation. You will forgive me if I press you a little bit further. Do you know roughly when you were instructed on this matter?

4

27 November, and, having received the papers, I asked that enquiries be made to see whether there are any views being expressed by anyone in Policy, for instance, or my immediate lawyer in charge of the case. But I have received no instructions. Last week, once today's matter was coming to a head, I made further enquiries, and I am afraid I drew a blank.

THE LORD CHIEF JUSTICE
5

: Certainly there is no possible criticism of you, Mr Dennis, but this case was an obvious case where we were going to give guidelines for the sentencing of domestic burglars. I would have thought that that was a matter of general importance where the views at a high level from the Crown Prosecution Service who, after all, are responsible for nationally prosecuting, could have been of considerable value to this court. I will make my views known to the Director and I think it is very unfortunate that we should be in this situation.

6

My Lord, I apologise for the discourtesy to this court; but I can only ask, and nothing came back.

THE LORD CHIEF JUSTICE
7

: Would you mind if I asked you also in the case of McInerney: you know what happened with regard to the offences to be taken into consideration?

8

Yes.

THE LORD CHIEF JUSTICE
9

: What appears to have happened was that, not only in the presence of a solicitor, he signed the form—

10

Yes.

THE LORD CHIEF JUSTICE
11

:—but he also put a personal letter as part of the form to the court.

12

Yes.

THE LORD CHIEF JUSTICE
13

: The matter was presented to the judge on the basis that he obviously had to ignore the offences to be taken into consideration.

14

Yes.

THE LORD CHIEF JUSTICE
15

: It does occur to this court that that again is a matter where questions should have been considered by the Crown Prosecution Service as to, having gone through the process he had, whether there should be a decision apparently just to forget all about that.

16

My Lord, I called for the file, which in fact did arrive finally on Friday. There is a note from counsel who attended on the day of sentence that the question of further charging the appellant with all these matters, bearing in mind the confessions made on the form, should actively be taken. But as far as the file is concerned, I can see no evidence that there has been any charging, and I confirmed the matter with my learned friend Miss Knight this morning. So far as she is aware, no further steps have been taken in relation to that matter. It is now over six months, so I fear that the position will be that no further action has been taken, perhaps in the light of the sentence imposed—I do not know the rationale. The only alternative is that the police are actively trying to obtain evidence from the very large number of artifices with a view to trying to put that before the Crown Prosecution Service with a view that further proceedings should be taken. But I have no answer. It is difficult to get any answer from the local branch.

THE LORD CHIEF JUSTICE
17

: Just a moment. ( The court conferred) Thank you very much, Mr Dennis, for your attempts to help the court. Miss Knight, you are going to deal with your client, first of all?

18

My Lord, yes.

THE LORD CHIEF JUSTICE
19

: Would you at the same time like to consider two matters? First, to what extent should we take into account any guidelines that are going to be given by the court in the course of determining the appropriate sentence for your client? That would be helpful. Secondly, have you anything to say in relation to the matter about which I have just asked Mr Dennis? That would also be very useful.

20

My Lord, yes. Perhaps I should start with that. It is of concern to myself that in lower court the learned judge, rightly, questioned it, but I had to tell him that, in my submission, no action could be taken because he was denying it and until there was a trial it would be quite wrong to take it into account, no matter how incriminating it appeared on the face of it. Although Mr McInerney is not present today, as far as I am aware that is still the situation. We were fully expecting it to be said that the Crown Prosecution Service would charge Mr McInerney, and he was well aware of that when he took the decision he did not to ask them to be taken into consideration at the sentencing stage.

THE LORD CHIEF JUSTICE
21

: Yes. Perhaps you would then advance your general submissions on the appeal.

[2002] EWCA Crim 3003

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)

Before

The Lord Chief Justice of England and Wales,

Mr Justice Silber and

Mr Justice Grigson

Case Nos: 2002/3547/W5

2002/2857/W3

Between
William Patrick James Mcinerney
Appellants
Stephen James Keating
and
R
Respondent

Miss Adrienne Knight (instructed by Brook Oliver, Solicitors) for McInerney

Miss Anna Price (instructed by Parry Carver, Solicitors) for Keating

Mr Mark Dennis (instructed by the Crown Prosecution Service) for the Crown

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...

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    • Journal of Criminal Law, The No. 73-4, August 2009
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