David Prendergrast-Scales [2019] EWCA Crim 1194
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In R v Prendergrast-Scales [2019] EWCA Crim 1194 the Court of Appeal (Mr Justice Spencer and His Honour Judge Picton sitting as a judge of the Criminal Division) allowed the appeal in part, reducing the sentence from four years’ imprisonment to 45 months.
Mr Prendergrast-Scales had pleaded guilty to burglary contrary to section 9(1)(b) of the Theft Act 1968 before His Honour Judge Clarke QC at Blackfriars Crown Court on 18 December 2018 and was sentenced to four years’ imprisonment. The single judge granted limited leave to appeal, together with a three-day extension of time and a representation order.
The burglary was committed at a dwelling-house in Campayne Gardens, London, at 5.40pm on 17 September 2018. One of the householders received an alert on a portable electronic device connected to CCTV inside the property and was able to watch the burglary as it happened. The appellant and another man were in the living room with bags, collecting items. Police were notified but the men had gone when officers arrived. Missing from the address was the female householder’s entire jewellery collection valued at over £14,000, a quantity of bags and personal items including a passport and bank cards. A police officer identified the appellant from the CCTV. The next day the appellant and the other male were stopped by police whilst driving in Westminster. Inside the car were a large number of items of jewellery belonging to the owner, her passport and a bag. Some items remained outstanding. In victim personal statements the householders described the loss of items of personal and sentimental value, many irreplaceable, including wedding gifts and jewellery the female householder had collected since her 21st birthday. The female householder recorded her sense of violation arising from being forced to witness the burglary, having struggled to sleep for a few weeks and being left feeling nervous.
The appellant was aged 35 and had 29 convictions spanning from November 1997 to November 2015. His relevant convictions comprised 18 theft and kindred offences including a non-dwelling burglary in 2015 for which he received 12 months’ imprisonment. His first dwelling burglary was sentenced in April 2003 and resulted in 12 months’ detention. A further dwelling burglary in 2011 resulted in a two-year community order imposed in February 2012. His third dwelling burglary offence was sentenced on 26 November 2015 with three years’ imprisonment imposed by way of the minimum term under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. Accordingly, when the appellant appeared before His Honour Judge Clarke, he was a four-strikes offender and the minimum term provision was once again engaged.
Passing sentence, the judge observed that the appellant’s offending was escalating as far as burglary offences were concerned. The judge referred to the extreme professionalism with which the appellant and his associate went about the burglary and commented that the theft of the passport suggested they had a ready market for such an item. The judge remarked that whilst it might be a virtue that the property had not been ransacked, the appellant had nonetheless taken all his victim’s memories. The judge stated that the time had come when three years was not the appropriate sentence and identified that the offence was category 1 and greater harm, meriting a starting point of five years’ imprisonment. In terms of credit for plea, the judge indicated that as the appellant said he needed to look at the video recording of himself committing the offence before he was prepared to plead guilty, credit of no more than 20 per cent could be given, resulting in a sentence of four years’ imprisonment. Immediately following sentence, defence counsel sought to raise the issue of credit for plea. The judge agreed that at the plea and trial preparation hearing the maximum credit was 25 per cent, but stated he was struck by the fact that the plea was not entered until the appellant saw the video and that as the appellant was a professional burglar, a 20 per cent reduction was the maximum he was prepared to allow.
The grounds of appeal upon which leave was granted argued that credit of 25 per cent rather than 20 per cent should have been given for the guilty plea and that the five-year starting point was manifestly excessive. A third point seeking to argue that full credit should have been awarded was not pursued with enthusiasm by Ms McCooey who appeared for the appellant and was right not to do so as it was bound to fail.
The court reviewed a number of authorities. Ms McCooey placed reliance on R v Dickson [2003] EWCA Crim 3408, a decision which predated the current burglary guideline by some nine years involving a drug addict who entered an occupied dwelling and took a purse and car keys. The court noted that case but drew attention to two more recent examples. In R v Davies [2019] EWCA Crim 879, an Attorney-General’s Reference, the offender was sentenced to 879 days for a dwelling burglary. The court commented that for prolific burglars undeterred by and apparently indifferent to previous sentences, the usual sentencing brackets have little application, quoting Davis LJ in R v Jones [2015] EWCA Crim 1258: “When offenders persist in such offending, then ever increasing sentences are to be expected.” The court in Davies concluded that the right sentence after trial for a category 2 burglary for an offender with that record was five years. In R v McCarthy [2019] EWCA Crim 859 the appellant was sentenced to five years for a dwelling burglary that fell within category 2. The court identified that the proper approach is first to assess the index offence against the guideline and only if the sentence identified would fall below three years does the section 111 provision come into play. The court stated that whilst in isolation the burglary would have fallen within category 2, the nature of the appellant’s record operated so as to elevate the offence into category 1 range and towards the top of that range.
Turning to the application of the guideline to the facts of the present case, the court considered that this was in fact a category 1 offence. There was greater harm by reference to the degree of loss, particularly of items possessed of substantial sentimental value, that was occasioned to the victims. In terms of culpability, the court considered there was a significant degree of planning or organisation, given the offence was committed by two offenders working together and in a professional way as the judge identified. Accordingly, the starting point was three years with a range of two to six years. Whilst the appellant’s record of offending was not perhaps as extensive as some of the defendants who featured in the cases to which reference had been made, it was still a bad record and must operate so as to move the offence towards the top of the range identified. In those circumstances the court considered that a sentence after trial of five years could not be considered to be manifestly excessive.
So far as credit for plea was concerned, however, the court did not consider that the judge was right to reduce from 25 per cent for the reason that he gave. The fact was that the appellant did plead guilty at the plea and trial preparation hearing and whilst he watched the CCTV before doing so, that did not in the court’s judgment operate so as to justify some reduction. If the case had had to be adjourned to a later date for the appellant to review the CCTV, then some impact on the level of credit might have been justified, but the plea was entered on the date the case was listed for the plea and trial preparation hearing and in those circumstances credit should have remained at 25 per cent and not been reduced as the judge chose to do. Accordingly, the appeal was allowed to the extent that the court quashed the sentence of four years and imposed one of 45 months.
In short, the five-year starting point was upheld as appropriate for a category 1 burglary committed by a four-strikes offender, but full 25 per cent credit should have been given for the plea entered at the plea and trial preparation hearing notwithstanding that the appellant viewed the CCTV footage before entering it.