Gail Sykes [2019] EWCA Crim 967; [2019] 2 Cr. App. R. (S.) 47

Regina v Gail Sykes [2019] EWCA Crim 967 was an appeal against sentence heard by the Court of Appeal, which dismissed the appeal and upheld the imposition of the statutory minimum term for a third domestic burglary.

The appellant was convicted after trial on 8 November 2018 in the Crown Court at Sheffield of burglary of a dwelling and was sentenced by His Honour Judge Reeds QC to three years’ imprisonment under the mandatory minimum provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000.

On 7 June 2018 at about 1 pm, Mr Holland heard a noise downstairs in his home in Sheffield. He found his wife’s holdall on the floor. Her passport, £600 worth of Turkish currency and travel documents had been taken. A door to the property had been left unlocked and was now wide open, as was the outside gate. The travel documents were found in bins along the road and the passport was later found in a nearby garden. At about 1.20 pm that day the appellant entered a currency exchange store and changed the Turkish currency into sterling. She was later identified and arrested at her home address. Mr Holland stated in evidence that the burglary had been horrible, that they had been obliged to obtain emergency replacement documents including a new passport, and that they had suffered difficulty, inconvenience and stress.

The sentencing judge stated that but for the minimum sentence provisions he would have imposed 21 months’ imprisonment. He noted that the appellant had committed house burglaries in 2000 and 2001 and referred to the minimum sentence provisions. He stated that the purpose of sentencing a house burglar on the third occasion was not to undertake an exercise into how old the previous convictions were, but to make it understood that anyone who committed house burglary knowing they had two qualifying house burglaries on their record would be subject to the mandatory minimum sentence unless there were other circumstances making its imposition unjust. The judge said he recognised that on two previous occasions judges had made observations tending to suggest that they would not automatically consider that the minimum sentence requirements would apply, but he did not agree with that analysis.

The observations referred to had been made at case management hearings prior to trial. On 16 July 2018, in the appellant’s presence, His Honour Judge Thomas QC had observed that if the three-strike provisions were meant to address persistent house burglars who would have received three years in any event, the appellant was not really in that category. Counsel then indicated that the appellant would have been amenable to any resolution that did not require a sentence of two and a half years’ imprisonment. On 17 October 2018, in the appellant’s absence, His Honour Judge Kelson QC asked counsel whether, if another judge at trial took the same view as he did that this was not a third strike situation but was custodial, the appellant might yet plead guilty. The judge observed that it was entirely possible another judge would take a different view from what he described as his own preliminary view, although what he said was passed to the appellant.

The appellant was 40 years of age. Her criminal record included 12 findings of guilt as a juvenile between 1994 and 1996 for burglaries of dwellings. She had numerous convictions for offences of dishonesty in 1996, 1997 and 1998. In 2000 she was sentenced to 18 months’ imprisonment for burglary of a dwelling with concurrent sentences for other dishonesty offences. In 2001 she received 28 months’ imprisonment for burglary of a dwelling. There were further dishonesty offences in 2004. In 2005 she received a community order for going equipped for burglary and two non-dwelling burglaries. There were theft offences in 2006, 2008 and 2009. In 2009 she received a suspended sentence with a drug rehabilitation requirement, and later in that year was imprisoned for theft offences and received another community order with a drug rehabilitation requirement. In 2011 she committed further theft offences and two offences of being drunk and disorderly, receiving a supervision requirement with alcohol treatment subsequently varied to imprisonment. Further theft offences followed in 2012. In 2013 she was sentenced to 18 months’ imprisonment for two offences of attempted burglary of a dwelling. In 2015 she received an eight-month suspended sentence for two non-dwelling burglaries with a drug rehabilitation requirement. In 2017 she breached the suspended sentence and was imprisoned for six months.

On appeal it was argued on the appellant’s behalf that she should not have been given the statutory minimum sentence when she was aware that other judges had suggested it might not be appropriate, and that given the age of the original qualifying offences, it was unjust to impose the minimum term.

The Court of Appeal addressed the first ground by observing that neither of the first two judges had been asked to give a formal advance indication of sentence in accordance with Goodyear. Neither judge had heard the case and it was canvassed on the second occasion that a different judge might take a different view and that the judge was expressing no more than a provisional view. There was no sense in which the appellant had acted to her detriment after the case management hearings in reliance upon anything said. The matter stood or fell by whether the eventual trial judge came to a conclusion properly open to him.

The court then considered whether the judge was correct to find that it would not be unjust to impose the minimum term. Reference was made to McInerney [2002] EWCA Crim 3003, in which the Lord Chief Justice had said that the sentence could be unjust if two of the offences were committed many years earlier than the third, or if the offender had made real efforts to reform or conquer addiction but some personal tragedy triggered the third offence. Section 111 gave the sentencer a fairly substantial degree of discretion as to the categories of situation where the presumption could be rebutted.

The court accepted that the appellant had difficulties with alcohol and drugs which had no doubt been behind much of her offending. Attempts had been made by sentencers to make orders to help resolve the problems but without success and the offending had continued. True it was that the original qualifying offences were a number of years ago, but in the court’s judgment they could not be said to have been consigned simply to history. They were followed by a large body of offending for offences of dishonesty, including non-domestic burglary in 2005 and 2015, and in 2013 there were two offences of attempted burglary of a dwelling. In the court’s judgment there was a chain of offending which could properly be said to provide a continuing link between the 2018 offending and the offences in 2000 and 2001. Not only did the appellant qualify for the minimum sentence that Parliament had provided, but it was open to the judge to conclude that it would not be unjust to impose it simply because of the age of the 2000 and 2001 offences.

The court also considered the fact that the judge thought that but for section 111 a sentence of 21 months’ imprisonment would have been appropriate. The court thought that would have been a generous view after a contested trial. Reference was made to R v Marland [2018] EWCA Crim 1770, in which the Court of Appeal had considered the minimum sentence regime for drug offences under section 110 of the 2000 Act. Simon LJ had stated that one way of testing whether a sentence would be unjust in the particular circumstances was whether the sentence under the statutory provision was markedly more severe than the sentence which would be passed applying the relevant Sentencing Council guidelines, but this had to be measured against the deterrent element which underlay the provision.

There was no doubt in this case that section 111 resulted in the appellant receiving a somewhat longer sentence than she would otherwise have done. That also had to be set against the deterrent purpose of the provision and the whole picture of the appellant’s previous record, of other options which had been tried with her including suspended sentences but which had failed to prevent her from re-offending. When that was done, the judge was entitled to take the view that in all the particular circumstances of this case it was not unjust to impose the minimum term. In short, the appeal against the three-year sentence for a third domestic burglary was dismissed, the Court of Appeal holding that notwithstanding the age of the two qualifying offences there was a continuing chain of offending and it was not unjust to impose the statutory minimum term.

Marland [2018] EWCA Crim 1770; [2018] Crim.L.R. 935, CA.
McInerney and Another [2002] EWCA Crim 3003; [2003] 1 All ER 1089