John Whitehouse [2019] EWCA Crim 970

The appellant was convicted of burglary, acquitted of attempt robbery and sentenced to 4 years imprisonment. 4 males broke into a pub, 2 with crowbars and challenged a male who lived above the pub demanding to know where the key to the safe was and threatening him. The appellant was identified from CCTV and had similar previous convictions including the burglary of a pub and the use of crowbars.

The offence was one of greater harm as the victim was on the premises, the culpability was high as they had been equipped and part of a group, the guidelines permitted the court to go outside the sentencing range because of the extent of the convictions.

The ground of appeal advanced was that the offence did not fall at the top end of category 1 and the two identified aggravating features were outweighed by the mitigating features.

Held: the offence clearly fell within category 1 and there was plainly a significant degree of planning, the combination of relevant factors indicated a starting point significantly in excess of 2 years. The most serious of the further factors was the previous convictions for burglary and related offences which indisputably took the offence toward the top of the range. The sentence was tough but not manifestly excessive.

The appellant had been subject to stringent bail conditions including reporting and a curfew. If there had been a tag the curfew would have been taken into account on sentence, here the period on bail was in excess of 20 months and the judge had a discretion to take that matter into account. Although there is no precise quantity of time that can be taken, 9 months would be fair and reasonable. The sentence substituted was 3 years and 3 months to reflect that factor, and that factor alone.