McNeil & Lewis [2019] EWCA Crim 1723

The appellants pleaded guilty to a non-dwelling burglary. Lewis was sentenced to 2 years and 4 months’ imprisonment and McNeil to 1 year and 10 months.  Lewis invited McNeil to assist him in stealing 5kg of cannabis, with the arrangement that Lewis would pay him once the cannabis had been sold.
The appellants gained access to the rear yard of premises they believed would be unattended, entering the garage but finding the house locked. McNeil had an axe with him, and they fled empty handed after the police were called.

It was submitted that the judge erred in categorising the offence as category 1 as opposed to 2. Further, even if the offence were in the higher category the starting point of 2 years was too high.

Held: the judge did fall into error with categorisation, at no point did he explain why he disagreed with the submission that this was a lesser harm case. None of the greater harm factors set out in the guideline is applicable. Even if the offence involved higher culpability it cannot have been right to categorise the offence as category 1 in the absence of greater harm.

The starting point taken was considerably longer than the upper end of the range for category 2. The judge would, however, have been justified in going outside the sentencing range. A more appropriate sentence would have been 24 months due to the targeting of the premises, planning and what was, in effect, a raid on a location known to have cannabis which substantially heightened culpability.

Lewis denied being aware that McNeil had an axe, a Newton hearing took place and, as a result, he was only given 20% credit for plea. The judge’s discretion in this regard was exercised appropriately.

The appeals were allowed, McNeil’s sentence was substituted for one of 14 months and for Lewis one of 16 months.