Arnold & Taylor [2019] EWCA Crim 1821

**R v Arnold and Taylor [2019] EWCA Crim 1821** concerned appeals against immediate custodial sentences for attempted burglary of a dwelling, in which the Court of Appeal substituted suspended sentences after finding that the judge below had erred in refusing to suspend and, in the case of Mr Taylor, had imposed a starting point that was too high.

On 29 July 2019 at Warwick Crown Court before His Honour Judge Lockhart QC, Mr Lyall Arnold and Mr Bradley Jordan Taylor each pleaded guilty to attempted burglary (dwelling) contrary to section 1(1) of the Criminal Attempts Act 1981. Mr Arnold was sentenced to 18 months’ imprisonment and Mr Taylor to 27 months’ imprisonment. A count of conspiracy to commit burglary with intent to steal was ordered to lie on the file on the usual terms. Mr Arnold appealed by leave of the single judge; Mr Taylor’s application for an extension of time and leave to appeal was referred to the full court.

The facts were straightforward. On the night of 2 August 2017 Mrs Sarah Parker and her family went to bed in their home in Coleshill, Warwickshire, leaving the house locked and secure. An Audi A3 worth approximately £25,000 was parked on the drive. At about 4.10 am a neighbour observed a car outside the property and saw two youths, later identified as Mr Arnold and Mr Taylor, leave that vehicle and approach the house. The police were alerted and attended shortly afterwards, by which time the two men had left the scene. Officers woke the family and found that the garage door handle had been broken and the rear door handle damaged. The judge found that the inference was that the two men had been involved in a serious attempt to enter the home in order to steal car keys and make off with the vehicle.

In passing sentence the judge reminded himself that this had been an attempt rather than a completed offence. He identified factors indicating greater harm, namely that the offence was planned, involved theft or damage of property causing a serious degree of loss (the car), and that the occupiers were at home during the commission of the offence. Factors indicating higher culpability included significant planning, going equipped, and being part of a group or gang. The judge concluded that the starting point was three years’ custody with a range of two to six years. He noted as an aggravating factor that the offence occurred at night.

The judge then considered the circumstances of each defendant individually. He noted that Mr Arnold, aged 21, had limited previous convictions, only a single offence of cannabis possession, and had been in employment until recently. The judge took account of a 13 month delay between the incident and the matter coming to trial. He concluded that the sentence after trial would have been 20 months’ custody and allowed a ten per cent reduction for the guilty plea, resulting in 18 months’ imprisonment. The judge considered whether that sentence could be suspended but concluded that it would never be appropriate for that type of burglary, with that type of potential damage and upset, to be marked by a suspended sentence.

In relation to Mr Taylor, also 21, the judge noted that he had a significantly more extensive record: two robberies sentenced together in 2014 and a conviction for handling stolen goods and dangerous driving for which he had received nine months’ imprisonment. That gave him three convictions for theft related offences. The judge noted that Mr Taylor had done well on home detention curfew and on licence and had been assessed as suitable for a course under the Employment Training and Education System, hoping to become a railway engineer. Nevertheless the judge concluded that the least sentence that could have been passed after trial was 30 months’ custody, which with a ten per cent discount for plea resulted in 27 months’ imprisonment. The judge again concluded that the offence was so serious that it had to be marked by immediate custody.

Mr Mann, appearing for Mr Arnold, submitted that while the starting point was correct and 18 months was warranted, given all the identified mitigation the judge should have concluded that the sentence could and should be suspended. He argued that the judge failed to apply the relevant guideline which flagged mitigation and prospects of rehabilitation as indicators for suspending a sentence. He submitted that there was no principle of law or policy which required that sort of offence to result in an immediate custodial sentence.

Ms O’Mara, appearing for Mr Taylor, argued that there was good basis for extending time, given incorrect prison details and personal reasons on the part of the legal team which led to the late application. She submitted that the 13 month delay meant that Mr Taylor had had a short period of imprisonment which acted as a shot across the bows, and the pre-sentence report made clear the progress he had made and that this had been a turning point for him. She submitted that the starting point of 30 months was too high given that previous convictions prior to the one which resulted in imprisonment were minimal and had been revoked in the interests of justice given his good progress. On that basis she argued the judge should have imposed a sentence of two years or less and should have suspended it. A certain amount of reliance was also placed on the disparity in sentences.

The Court of Appeal concluded that there was no reason in principle why an offence of that sort required an immediate custodial sentence. Although the sentencing guideline particularly directed judicial attention to the possibility of suspension in cases falling within categories 2 and 3, that did not mean that in an appropriate case within category 1 suspension might not be appropriate. Looking at the relevant portions of the guideline on the imposition of community and custodial sentences and focusing on Mr Arnold’s position, he had an assessed low risk of further offending and realistic prospects of rehabilitation, as well as personal mitigation as to his personal circumstances. In the light of those factors the court concluded that there was no reason why his sentence could not and should not be suspended. The court therefore allowed the appeal and substituted a sentence of 18 months’ imprisonment suspended for an operational period of 18 months with no rehabilitation activity requirement given the timeline.

Turning to Mr Taylor, the court held that the starting point for the offence must logically have been the same figure for both defendants before personal factors fell to be considered. The judge’s reasoning suggested that his starting point would have been somewhere in the region of 27 months, from which he made deductions for delay and personal mitigation in Mr Arnold’s case to reach 21 months. Assuming the same starting figure for Mr Taylor, it seemed to the court that the question of delay was of unusual significance. Otherwise his personal mitigation was of a similar order to that of Mr Arnold. The court emphasised that the unexplained delay of 13 months between the prompt arrest and interview and the issue of the postal requisition summoning them to the magistrates’ court loomed large. That delay was undesirable in all cases and for all sorts of reasons, but the present case was one where it was of particular significance. Because of that delay Mr Taylor had one more relevant conviction than he would have had if the matter had progressed expeditiously, and secondly he had experienced custody and as a result shown every sign of being deterred from further offending by that salutary experience.

The court held that those factors could not do away with the question of Mr Taylor’s previous convictions. Previous convictions were assumed to be a serious aggravating factor because they demonstrated a propensity to commit such acts and might be said to negative a suggestion of rehabilitation. On the papers before the judge Mr Taylor had three such convictions. The court held that the timeline provided a complication, intersecting with the issue of delay. It might therefore be said that the better course would be to sentence with very light regard to the final conviction or allow extra mitigation arising from the delay to balance that factor. As far as the older convictions were concerned there was the factor that the sentence imposed on those had effectively been suspended for his good progress.

The court held that looking at the matter overall there would certainly be good reason, because of the existence of the two older convictions alone, to make Mr Taylor’s sentence higher than that of Mr Arnold, and the court would say at least three to six months higher. That was the inescapable consequence of Mr Taylor’s past actions. But the court was not persuaded that his previous record of convictions could fairly account for the uplift of nine months. The court concluded that the most severe appropriate sentence, bearing in mind the status of the offence as an attempt, would have been one that came some way below the 30 month mark and should not have been more than six months longer than that imposed on Mr Arnold. At most therefore the sentence after reduction for plea should have been 24 months. On that basis Mr Taylor’s sentence would have been two years and would have been properly susceptible of being suspended.

Considering the question of suspension, similar reasons to those which operated for Mr Arnold applied also to Mr Taylor and the court took the view that his sentence could and should have been suspended for those reasons. The court granted the extension of time and leave and quashed the sentence imposed. The court substituted a sentence of two years’ imprisonment suspended with an operational period of 18 months. Given the time spent in prison the court was not minded to impose any rehabilitation activity requirement or community requirement. The court certified that the time spent in custody between sentence and appeal, agreed as 79 days for both, would be taken into account in the event of activation of the suspended sentence.

**In short,** both immediate custodial sentences were quashed and replaced with suspended sentences of 18 months for Mr Arnold and two years for Mr Taylor, the court holding that suspension was appropriate in both cases and that the starting point for Mr Taylor had been set too high given the delay in the proceedings and the mitigating effect of that delay on the significance of his previous convictions.