Griffin & Bennett [2018] EWCA Crim 2538; [2019] 1 Cr.App.R.(S.) 37, CA.
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In Griffin & Bennett [2018] EWCA Crim 2538, the Court of Appeal (Criminal Division) reduced the total sentence of ten years’ imprisonment imposed on each appellant to nine years, allowing the appeals in part.
Mr Gavin Mark Bennett and Mr Martin James Griffin had each pleaded guilty in the Crown Court at Sheffield on 16 March 2018 to conspiracy to burgle (count 1) and conspiracy to steal (count 2). The Recorder of Sheffield had sentenced each man to nine years’ imprisonment on count 1 and one year’s imprisonment on count 2, to run consecutively, making a total of ten years’ imprisonment. The single judge granted leave to Mr Griffin and the Registrar referred Mr Bennett’s application to the Full Court, which granted him an extension of time and leave to appeal.
Between 1 August and 5 October 2017 the appellants committed twenty-two burglaries: twenty of dwelling-houses and two of the same commercial premises. The burglaries generally took place in the early hours of the morning. In the vast majority of cases occupiers, often including children, were asleep inside. The principal aim was to steal high-value motor vehicles parked outside, using keys stolen from inside the premises. The total value of stolen vehicles exceeded five hundred thousand pounds. Other items of property were also stolen, and several premises were subjected to extremely untidy searches.
On 3 August 2017 two dwellings were burgled, both occupied at the time. In the first, two motor vehicles were stolen and a safe removed containing important documentation, one thousand five hundred pounds in cash and jewellery. In the second, the appellants were disturbed but still managed to escape with two suitcases; the householders, one of whom was Ms Claire Ward who was five months pregnant, had just returned from holiday. Further dwellings were burgled on the night of 11 August 2017, again whilst occupied, and in one case whilst children slept upstairs. In each case a motor vehicle was stolen using keys taken from inside. The householders were significantly affected and the parents in the latter case expressed concern about the potential harm to their children.
The offending continued throughout August 2017. One victim, Mr Adrian Senior, returned from holiday with his family to find his home wrecked, expensive items stolen from inside, and a Volkswagen Golf taken from outside. On 30 August and 4 October 2017 the appellants broke into commercial premises called Eton Fashion. The first incident was a ram-raid using a stolen vehicle. Both incidents caused losses exceeding thirty thousand pounds. The owners described these as the worst incidents they had ever experienced, and their business suffered severely from increased security costs and loss of trade.
Between these burglaries the appellants continued to break into occupied homes at night. On 17 September 2017 they stole from a home whilst the owners were inside and their children were asleep upstairs, taking items used to assist disabled children, including a motor vehicle. On 23 September 2017 they burgled a home whose children were asleep upstairs, stealing two BMW motor vehicles and jewellery and high-value electronic items. A similar burglary occurred on 27 September 2017 when the Curtis family home was burgled whilst they slept upstairs; the entire downstairs was searched and economically and emotionally valuable property stolen. The effect on that family was such that they were considering moving house. The final burglary took place at the Siddalls’ family home whilst their three children slept upstairs, and their BMW was stolen using a key taken from within.
Nearly all the householders provided victim impact statements disclosing very significant detrimental effects on themselves and their families. Mr Bennett, aged thirty-seven, had a long history of serious offending, including robbery in 1994 and repeated convictions for burglary of dwellings in 1995, 1996, 1998 and 2007. Mr Griffin, aged twenty-eight, had previous convictions for various offences including robbery in 2013 and burglary of a dwelling in 2016.
The Recorder was informed by both prosecution and defence that the maximum sentence for count 1 was ten years’ imprisonment, and he proceeded to sentence on that basis. In his sentencing remarks he stated that the appellants were both professional offenders. He noted not only the very high value of goods stolen but also the severity of the emotional harm caused to the householders and their families. He stated that the appellants’ antecedents were an aggravating factor and that the timing of their pleas of guilty would attract only a ten per cent discount from the sentence he would otherwise have imposed.
Mr Dermot Hughes of counsel advanced two grounds of appeal on behalf of both appellants. First, he submitted that the Recorder’s selection of ten years’ custody on count 1 before any discount for plea was manifestly excessive, representing the maximum sentence for the offence. Second, he submitted that the criminality represented by count 2 was already reflected in count 1, such that the one-year sentence should have been ordered to run concurrently rather than consecutively.
The Court invited the prosecution to address the question of the maximum sentence for count 1. Ms Katy Rafter of counsel submitted that the maximum sentence for the count was fourteen years’ imprisonment rather than ten years, on the basis that the vast majority of the burglaries the subject of the conspiracy were burglaries of dwelling-houses, which have a maximum sentence of fourteen years under section 9(3)(a) of the Theft Act 1968, and that section 3(3) of the Criminal Law Act 1977 provides that the maximum sentence for conspiracy involving imprisonable offences was the maximum for the offence with the longest maximum sentence.
The Court considered this issue in light of R v Bridge [2010] EWCA Crim 3026, which had referred to earlier decisions of the House of Lords and the Court of Appeal in R v Courtie [1984] 1 AC 463 and R v Miller [2010] EWCA Crim 809. In Courtie the House of Lords held that where sentences for various offences differed depending upon the existence or absence of particular factual ingredients, the effect was to create separate and distinct offences, each with its own maximum sentence. Miller relied upon Courtie to determine that the sentence on conviction for an offence of burglary which involved a dwelling but had been indicted without any express reference to that fact was limited to ten years’ imprisonment under section 9(3)(b) of the Theft Act 1968. Bridge in turn held that where a conspiracy to burgle which had in fact involved burglaries of dwellings had not been indicted as such in the particulars of the offence, the maximum sentence was ten years.
The Court held that although Bridge made no express reference to section 3(3) of the Criminal Law Act 1977, the reference to “relevant offence” in that section is to a particular offence, and that in accordance with Miller the maximum sentence was limited to that provided for by section 9(3)(b), namely ten years, because the indictment made no express reference to the burglaries being burglaries of dwellings despite the fact that the vast majority of them were.
The Court went on to consider whether the Recorder was justified in selecting the maximum sentence for count 1 as the appropriate sentence before discount for plea. In the Court’s judgment he was. The offences were carried out in a planned and professional manner over a significant period of time. They involved breaking into occupied premises at night, not infrequently when children were asleep upstairs, causing significant psychological harm to the occupants, and the items stolen were valued in excess of five hundred thousand pounds. If the burglaries had been individually indicted as burglaries of dwelling-houses they would have been category 1 offences within the relevant sentencing guidelines, each attracting a starting point of three years’ custody with a category range of two to six years. Furthermore, the position of both appellants was significantly aggravated by their previous history of relevant offending.
The Court referred to written submissions by Mr Hughes citing several decisions involving multiple dwelling-house burglary offending, noting that each case was fact-specific and of limited utility. The Court observed that R v Wakelin [2017] EWCA Crim 623 showed that a sentence of nine years after discount was not out of line with the nature and extent of offending reflected in count 1. The Court accepted that the maximum sentence for an offence should be reserved for the most serious examples of those offences and considered that this was one such example.
The Court’s conclusion as to the consecutive nature of the sentence on count 2 was different. At an earlier stage the respondent had sought to justify the Recorder’s view that this required a consecutive sentence. It was now appreciated that there was in essence no separate criminality which that count represented. Although count 2 reflected the theft of motor vehicles from outside the burgled premises, it was apparent from the Recorder’s sentencing remarks that he had considered this part and parcel of the criminality involved in count 1. The Court held that although it was correct to impose a sentence on count 2, as the criminality which it reflected was taken into account in determining the appropriate sentence on count 1, the period ought to have been ordered to run concurrently rather than consecutively.
The Court therefore left undisturbed the length of the one-year sentence on count 2 but ordered it to run concurrently with the nine-year sentence on count 1, resulting in a total sentence for both appellants of nine years’ imprisonment. The Court also observed that in view of its conclusions as to the maximum sentence available for conspiracy in count 1, those responsible for drafting indictments ought to make express reference to the nature of the buildings involved, where they are dwellings, in order to attract the higher maximum sentence of fourteen years’ imprisonment. In short, the appeals were allowed to the extent that the total sentences were reduced from ten to nine years by making the sentences on count 2 concurrent.