Davies [2019] EWCA Crim 879
- Summary
- Citing
- Cited By
In R v Davies [2019] EWCA Crim 879 the Court of Appeal allowed an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 and increased the sentence imposed for dwelling-house burglary.
Mr Davies pleaded guilty on 5 October 2018 at Cardiff Crown Court to one offence of burglary contrary to section 9(1)(b) of the Theft Act 1968, four offences of fraud contrary to section 1 of the Fraud Act 2006, and one offence of possession of diamorphine contrary to section 5(2) of the Misuse of Drugs Act 1971. He was sentenced to a total of 876 days’ imprisonment, comprising 876 days for the burglary with concurrent terms of 28 days for each of the other offences. An order for forfeiture and destruction of drugs was made and a victim surcharge of £170 imposed.
In the early hours of 2 September 2018 Mr Davies entered a dwelling in Bridgend through a front door which may have been left unlocked. The occupants were asleep inside. He stole £1,300 in cash, a purse containing two bank cards, and a passport from drawers in the living room. The owners discovered the theft when about to depart for holiday that morning. They lost two days of their holiday and incurred approximately £700 in costs replacing the passport and flights. Mr Davies left fingerprints in one of the drawers and used one of the stolen cards to make contactless payments totalling £110 that morning. He was identified from CCTV footage and arrested a few days later. Upon arrest he had a small wrap of diamorphine concealed on his person and £210 in cash. None of the stolen property was recovered. In interview he admitted using the card but claimed to have found the purse and denied the burglary despite being informed his fingerprints had been found.
Mr Davies was 39 years old at the time of the offence. He had 20 previous convictions for 38 offences committed between 1996 and 2016, including 23 theft and kindred offences. Materially, he had nine previous dwelling-house burglary convictions sentenced on six separate occasions as well as attempted burglary offences. He was subject to the minimum sentencing regime under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. He received his third qualifying sentence under that provision on 11 January 2007 when he was sentenced to 3 years’ imprisonment. Thereafter he received a community order with drug rehabilitation for attempted dwelling-house burglary on 19 November 2013, 876 days’ imprisonment for dwelling-house burglary on 21 April 2015, and 42 months’ imprisonment for dwelling-house burglary on 24 November 2016. The instant offence and the one immediately preceding it were both committed whilst on licence for dwelling-house burglary. Mr Davies indicated that a guilty plea was probable when appearing at the magistrates’ court on 7 September 2018 and pleaded guilty at the plea and trial preparation hearing on 5 October 2018.
The judge approached the burglary as a standalone offence under the Burglary Offences Definitive Guideline and then elevated the sentence to reflect the statutory minimum term of 3 years. He regarded the offence as category 2, that is greater harm and lesser culpability, with a starting point of 1 year’s imprisonment and a range from a high level community order to 2 years’ imprisonment, but towards the upper end to reflect previous convictions. He said the starting point was however 3 years’ imprisonment as the minimum sentencing provisions applied and there was no reason to find it unjust to apply that provision. He gave 20 per cent credit for the guilty plea, being limited by section 144(2) and (3) of the Criminal Justice Act 2003 to not less than 80 per cent of the prescribed custodial period, arriving at 876 days.
Ms Pattison for the Attorney General submitted that the sentence was unduly lenient. The court agreed that whilst the offence itself was properly categorised as category 2, there were guideline factors indicating greater and lesser harm: the occupiers were at home, the offence was committed at night, and the property stolen caused economic loss and inconvenience, albeit there was limited intrusion. However, Mr Davies was a recidivist burglar with a substantial record for like offences and the offence was committed whilst on licence for a previous dwelling-house burglary with approximately 18 months of that sentence still to serve. These aggravating features were insufficiently factored into the eventual sentence and there was no mention at the sentencing hearing that Mr Davies was on licence at all.
The court was referred to authorities dealing with persistent burglars who continued to offend whilst on licence for similar offences and after becoming subject to the minimum sentencing regime, including R v Brooke [2012] EWCA Crim 1642, R v Fellows [2014] EWCA Crim 2265, R v Jones [2015] EWCA Crim 1258, and R v O’Neill [2015] EWCA Crim 1181. These authorities indicated that for prolific burglars undeterred by previous sentences the usual sentencing brackets had little if any application and that sentences could be elevated to 5 to 6 years before giving credit for plea. Mr Sharp for Mr Davies conceded that an uplift to the 3-year minimum was warranted but submitted that this case was distinguishable as it involved one offence rather than two and Mr Davies had less serious antecedents than those in the cited cases.
The court held that Mr Davies had received a range of sentences from non-custodial disposals to 42 months’ imprisonment for burglary offences and this was his fourth sentence under the minimum sentencing provisions. For this latest offence a starting point of 5 years before reduction for plea was appropriate, that is 2 years above that taken by the judge. This meant however that Mr Davies was entitled to a third discount rather than the 20 per cent afforded below for his guilty plea. The court quashed the sentence of 876 days for burglary and substituted a sentence of 3 years and 4 months’ imprisonment. The sentences for the fraud and drugs offences remained unchanged. In short, the Court of Appeal increased the burglary sentence from 876 days to 3 years and 4 months to reflect the persistent nature of the offending and commission whilst on licence.