Holmes [2019] EWCA Crim 612
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R v Holmes [2019] EWCA Crim 612 concerned an appeal by John Darren Holmes against a community order imposed in the Crown Court at Nottingham by Mr Recorder Freeman following his guilty plea to burglary of a dwelling with intent to steal contrary to section 9(1)(a) of the Theft Act 1968. The Court of Appeal (Lady Justice Sharp DBE, Mr Justice Goose, and His Honour Judge Sloan QC, Recorder of Newcastle, sitting as a judge of the Criminal Appeal Court Division) dismissed the appeal.
Mr Holmes was sentenced to a Community Order of twelve months with a Rehabilitation Activity Requirement and a Curfew Requirement for twelve months. He had served six months on remand prior to sentence.
On 19 May 2018 at 7.50 am, Mr Holmes attempted to burgle a dwelling house whilst the occupants were at home in bed. He rang the doorbell, entered through the outer porch door, and then attempted to open the internal door into the hallway. The occupants heard the intruder and shouted, causing Mr Holmes to flee. A neighbour observed him, took a photograph, and reported the incident to the police. Mr Holmes pleaded guilty on a written basis, accepted by the prosecution, in which he admitted entering the property intending to steal, claiming he had taken a wrong turn after returning from a party the previous night. The female occupant provided a Victim Personal Statement describing ongoing sleep problems, anxiety about further burglary, and feelings of insecurity when alone, which persisted five months after the offence.
Mr Holmes was aged forty-seven with an extensive antecedent history comprising forty-seven convictions for one hundred and ninety-five offences. Ninety-nine offences related to dishonesty, of which twenty-two were for burglary or attempted burglary of dwelling and non-dwelling properties. Recent convictions included two burglaries sentenced to two years’ imprisonment on 23 January 2015, burglary of a non-dwelling sentenced to seventy days’ imprisonment on 21 March 2017, and a similar offence sentenced to ten months’ imprisonment on 23 August 2017.
The Recorder applied the Burglary Guideline and, with the agreement of counsel for Mr Holmes, assessed the offence as category 2, involving greater harm because the occupiers were at home whilst the offender was present. The starting point for a category 2 offence was one year’s custody, with a range from a high level community order up to two years’ custody. The offence was aggravated by Mr Holmes’s extensive antecedent history. The Recorder expressly took into account that Mr Holmes had served six months on remand before imposing the community order with rehabilitation and curfew conditions.
On appeal, Mr Outhwaite on behalf of Mr Holmes submitted that the sentence was manifestly excessive because Mr Holmes had served the equivalent of a twelve-month sentence by being on remand for six months. It was further submitted that the circumstances of the offence were such that a community order was excessive.
The Court of Appeal rejected these submissions. Mr Justice Goose, giving judgment, observed as a preliminary matter that this court had previously stated that time served on remand in custody does not of itself mean that the sentence has effectively been served and prevent the court from imposing a custodial or alternative sentence on an offender, citing R v Sutherland [2017] EWCA Crim 2259 and R v R [2018] EWCA Crim 2447. Time served on remand should not be thought equivalent to the sentence of the court.
The court held that in Mr Holmes’s case his extensive antecedent history meant that the imposition of a community order with restrictions was entirely appropriate notwithstanding the time served on remand. The Recorder would have been justified in going to the top of the guideline range of sentencing given such offending. The Recorder expressly took into account the remand period when imposing the order, and the fact that Mr Holmes had been on remand was a significant factor allowing the judge to impose a non-custodial sentence.
The court rejected the submission that Mr Holmes was effectively being sentenced twice, stating that this submission ignored his antecedent history for similar, repeated, and very recent offending. The court was unable to accept that the sentence imposed amounted to being sentenced twice over. Furthermore, even though this was an offence of burglary with intent to steal contrary to section 9(1)(a) of the Theft Act 1968, it remained a serious offence given that the occupants were at home when the burglary took place and that Mr Holmes had been convicted for two separate burglary offences in 2017.
In short, the Court of Appeal found that the community order imposed was neither manifestly excessive nor wrong in principle and dismissed the appeal.