Anthony Fearn [2019] EWCA Crim 1232

**R v Anthony Henry William Fearn [2019] EWCA Crim 1232** concerned an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 in which the Court of Appeal (Lord Justice Holroyde, Mr Justice Warby and Mr Justice Julian Knowles) held that a community order for domestic burglary involving the infliction of grievous bodily harm was unduly lenient where the minimum sentencing provisions applied and no particular circumstances existed to make that minimum unjust.

Mr Fearn had pleaded guilty on 30 January 2019 at Bolton Crown Court to burglary contrary to section 9(1)(b) of the Theft Act 1968, the particulars being that he entered as a trespasser a dwelling and inflicted grievous bodily harm on the occupier. On 25 April 2019 he was sentenced to a two‑year community order with a six‑month drug rehabilitation requirement, a twenty‑day rehabilitation activity requirement and 150 hours of unpaid work. The Solicitor General applied for leave to refer on the ground that the sentence was unduly lenient.

In the early hours of 6 August 2018 Mr Fearn’s on‑off partner, Laura Ord, had gone to the home of one of her clients as a prostitute, Mr John Edwards, and demanded money she claimed was owed. An hour later Mr Fearn and an unidentified second man arrived at Mr Edwards’ home and forced their way inside. Mr Fearn went upstairs and took £90, while the other man took a television. Mr Fearn then came downstairs and punched Mr Edwards in the face, causing a depressed fracture of the right cheekbone. Mr Fearn and the other man left, with the unidentified male being seen carrying the television but successfully evading arrest when he dropped it and fled. Mr Fearn was arrested at his home shortly afterwards. He denied being present and denied punching Mr Edwards in interview but was later identified at a VIPER procedure.

Mr Fearn had originally been charged with robbery and attempted grievous bodily harm with intent, to which he pleaded not guilty at a plea and trial preparation hearing on 3 September 2018, though he indicated through his representatives a willingness to plead guilty to assault occasioning actual bodily harm. The Crown did not accept that indication. On the day of trial he pleaded guilty to the burglary offence on a basis that he had used no weapon, that he took the £90 believing it was owed to Miss Ord and that he told the other man not to steal the television. Sentencing was adjourned for a pre‑sentence report. On 15 February 2019 the case returned to court but the matter was further adjourned. The judge granted bail, ending a custody period of a little over six months. Mr Fearn then spent 68 days on a qualifying curfew before sentence on 25 April.

Mr Fearn, aged 34 at sentence, had 27 previous court appearances for 47 offences, predominantly dishonesty, but including robbery, battery and disorder. Of particular relevance were a community rehabilitation order in February 2004 for burglary in a dwelling with intent to steal and theft from a dwelling, committed aged 18; a suspended sentence of ten months in July 2013 for burglary and theft in a dwelling, committed aged 28; and a suspended sentence in 2015 for burglary and theft in a non‑dwelling. His most recent sentence in January 2016 was six months’ imprisonment suspended for theft and battery. Because of two previous dwelling burglary convictions, he was liable to the minimum sentencing provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000.

The pre‑sentence report recorded that Mr Fearn had used class A drugs since a very young age, with periods of abstinence, and that he had described his use as “out of control”. The probation officer inferred that the offence was financially motivated by his girlfriend’s desire for drugs. At the time of the offence Mr Fearn had taken heroin and benzodiazepines, and toxicology also showed cocaine. He spent his benefit income, after paying bills, on drugs. In custody he engaged with drug services and was on a methadone reduction programme. He was assessed as suitable for a drug rehabilitation requirement and a rehabilitation activity requirement but, owing to health, mental health and substance misuse issues, not for unpaid work. The author recognised the minimum sentencing provisions but said an alternative sentence might be suitable. In a letter to the court Mr Fearn apologised, saying Miss Ord had told him Mr Edwards had strangled her, which sent him into a rage.

The judge received detailed written and oral submissions on sentencing, including whether to consider the domestic burglary guideline and the section 20 grievous bodily harm guideline. The judge noted that although the burglary guideline was relevant, its focus was on burglary with intent to steal or burglary and theft. He rejected the Crown’s submission that the case fell into category one, reasoning that factors such as the occupier being at home and violence being used were part and parcel of the offence. He found that the presence of the other man did not make this a group offence because that man took no part in the assault. Referring to Attorney General’s Reference (R v Shallcross) [2017] EWCA Crim 2080, [2018] 1 Cr App R (S) 29, he considered it permissible to look at the section 20 guideline and placed the case in category three. He determined that the appropriate sentence before credit for plea would have been two years’ imprisonment. He allowed 25 per cent credit on the ground that, although the plea came late, there had been an earlier indication of willingness to plead to actual bodily harm.

Turning to section 111, the judge concluded that the minimum sentence after plea credit would conventionally be expressed as 876 days’ imprisonment. However, he found it unjust to apply the minimum by reason of the cumulative effect of the unusual circumstances of the offence, the substantial period in which Mr Fearn had kept out of trouble before the offence, his efforts to conquer his drug problem and the time span of the qualifying burglary offences. He accepted Mr Fearn’s remorse as genuine and took the view that there was now an opportunity for him potentially to turn away from drug misuse and offending.

A supplementary probation report dated 29 May 2019 indicated that Mr Fearn had attended four appointments as instructed and complied with supervision since the community order was made. His ongoing health problems meant he was currently unable to perform unpaid work and it was thought highly unlikely he would complete the unpaid work in the near future. He was residing with a new partner who was a stabilising factor, though the author was uncertain whether that relationship would continue and concluded there were not many protective factors in place. Mr Fearn had started to address his drug use with methadone but admitted he was still using cocaine and heroin.

On behalf of the Attorney General, Ms Heer submitted that the sentence was unduly lenient. Section 111 imposed a presumption of a minimum sentence unless particular circumstances relating to the offence or the offender made it unjust to impose that minimum. She submitted that there were no such particular circumstances. She acknowledged that case law afforded the sentencer a fairly wide discretion but submitted there must be a realistic assessment of the evidence as the foundation for any favourable exercise of that discretion. Of the four factors mentioned by the judge, only a realistic prospect that a non‑custodial sentence might successfully promote rehabilitation could in principle justify departure, but there was insufficient evidence to support such a finding. Mr Fearn had made no apparent attempt to address drug use before his arrest, committed the offence under the influence of heroin and was still taking drugs. The four factors did not justify a departure even when viewed collectively.

For Mr Fearn, Mr English acknowledged the sentence was lenient but submitted it was not unduly lenient. He pointed out that Mr Fearn had used class A drugs since adolescence and could not realistically be expected to turn away from them overnight. His good intentions should be recognised as having a realistic prospect of success. He also noted that the period before this offence was the longest Mr Fearn had completed without conviction since becoming an adult. He submitted the judge, after the most careful consideration, was satisfied it would be unjust to apply the minimum and was entitled to reach that conclusion.

Lord Justice Holroyde, giving the judgment of the court, set out the legal framework. Section 111 required courts to impose a sentence of not less than the prescribed minimum term in circumstances where but for the section they would not or might not do so. The correct approach was to apply the burglary guideline in the usual way, then check whether the provisional sentence infringed the minimum term provisions. If it did, the court must consider whether particular circumstances relating to the offence or the offender made it unjust to impose the minimum. The length of time between qualifying offences was a matter to be taken into account but was not in itself a factor making it unjust. Although the effect of the provisions might seem harsh in some circumstances, the courts must not treat perfectly normal circumstances as “particular circumstances” in order to circumvent the statute.

Applying the guideline, the court regarded the case as falling at the top of category two or the bottom of category one in the domestic burglary guideline, before taking account of the serious aggravating features of previous convictions, intoxication by drugs, offending at night and the participation of a second offender. Proper application of the guideline would lead to a sentence somewhat shorter than the minimum term but somewhat longer than the judge felt appropriate. The court also observed that Mr Fearn was very fortunate to receive as much credit as he did for the late guilty plea, given that he had only indicated willingness to plead to a less serious offence that did not involve intrusion into the victim’s home.

As to the application of section 111, the court agreed that this was an unusual type of burglary but did not see how the fact that it was burglary followed by the commission of grievous bodily harm, rather than burglary followed by theft, could assist Mr Fearn. The crime was no less serious than the more familiar form of burglary. Mr Fearn inflicted grievous bodily harm on a man in his own home in anger as a form of revenge when he had already accomplished his purpose of collecting the £90. Many years had passed since the first qualifying burglary, but there had not been a long period since the second qualifying offence and a succession of other criminal offences had been committed throughout. The court was therefore unable to find any particular circumstance relating to the offence which would arguably render it unjust to impose the minimum term.

Regarding the circumstances relating to the offender, the court acknowledged the point about the elapse of two and a half years between the suspended sentence in January 2016 and this offence and that the judge accepted Mr Fearn’s remorse as genuine. It was to his credit that he had shown willingness to address his drug habit. However, these matters, individually or collectively, did not amount to particular circumstances relating to the offender which would make it unjust to impose the minimum term. It was important that Mr Fearn appeared not to have made any attempt to address his drug problem before his arrest and was under the influence of drugs when he committed the offence. The court accepted the submission that there was no evidence capable of providing a solid foundation for saying there was a realistic prospect of successful rehabilitation. The court reached this conclusion having viewed the factors collectively and in the round and having looked to see whether the supplementary probation report might encourage a more optimistic view or otherwise merit favourable consideration.

For those reasons the court granted leave to refer and was satisfied the sentence was unduly lenient because the minimum sentence should have been imposed with no sufficient reason for taking any other course. It quashed the community order and substituted a sentence of 876 days’ imprisonment. The time Mr Fearn spent remanded in custody would count towards that sentence. The court gave a direction under section 240A of the Criminal Justice Act 2003 that he would receive full credit for half the time spent under qualifying curfew, which on the information before the court was 68 days, entitling him to credit for 34 days, with provision for the record to be amended if that period was mistaken. Mr Fearn was directed to surrender to Bolton Police Station by 4.00 pm on the day of judgment.

In short, the Court of Appeal allowed the Attorney General’s reference, concluding that a community order was unduly lenient where the offender was liable to a minimum custodial term under section 111 and no particular circumstances relating to the offence or the offender justified departure from that minimum, notwithstanding his expressions of remorse and efforts to address his drug problem.

R v Shallcross [2017] EWCA Crim 2080; [2018] 1 Cr App R (S) 29
McInerney and Another [2002] EWCA Crim 3003; [2003] 1 All ER 1089
Marland [2018] EWCA Crim 1770; [2018] Crim.L.R. 935, CA.
Lucas [2011] EWCA Crim 2806
Leonard [2018] EWCA Crim 870