John Whitehouse [2019] EWCA Crim 970

Mr John Whitehouse appealed against a sentence of four years’ imprisonment imposed in the Crown Court at Wolverhampton after his conviction for burglary, and the Court of Appeal (Criminal Division) allowed the appeal in part, reducing the term to three years and three months.

On 3rd October 2018 Mr Whitehouse had been convicted following trial before Mr Recorder Watson. He had been acquitted on a second count of attempted robbery. On 13th November 2018 the Recorder sentenced him to four years’ imprisonment. Mr Whitehouse, aged 40 at sentence, appealed by leave of the single judge.

At approximately 1.30 am on 26th November 2016 Jamie Yendell, who lived above the Old Priory public house in Dudley town centre, left his room and was confronted by a male. Behind that man were two other men holding crowbars. Mr Yendell was asked where the key to the safe was, but he said he did not have it. One of the group threatened to smash his head in. Mr Yendell immediately ran back into his room and telephoned the police. CCTV footage showed that four males had broken into the public house, two with crowbars. The appellant was identified from CCTV images placed on police systems. When interviewed on 31st December 2016 he answered no comment to all questions.

The Recorder observed that the appellant was aged 40 and had a poor record for dishonesty including a number of non-dwelling burglaries, some involving public houses and the use of crowbars. His last offence had been in 2013 and had resulted in a sentence of 27 months. The burglary fell within greater harm under the guideline because the victim was on the premises. The appellant had not been party to the threat of violence made to Mr Yendell. Culpability was high because the offenders had been equipped and operated as part of a group. The starting point for a category 1 offence was two years, with a range of one to five years. The appellant’s position was significantly aggravated by his previous convictions, which permitted the court to go outside the bracket if appropriate. The offence was also aggravated by its timing. The Recorder had read two references on behalf of the appellant. It was a shame that after a break from being a career burglar he had started again. He had suffered a bereavement in 2016 and began drinking, which led to poor choices. The references spoke well of his work ethic. The Recorder had been asked to take into account the delay between commission and sentence, but the appellant had been open to plead guilty much earlier and had contested the matter. He had been married for eleven years and had a nine-year-old daughter. The Recorder accepted that he had taken steps to address his offending behaviour. Only immediate custody was appropriate. The offence fell towards the top end of the bracket because of the aggravating features and his previous convictions. The least sentence that could be imposed was four years.

The appellant’s record showed 34 convictions for 68 offences spanning 3rd August 1993 to 25th June 2013, including theft of vehicles, handling stolen goods, theft of bicycles and offences relating to non-dwelling burglary in 2003, 2011 and 2013; being found on enclosed premises for unlawful purpose in 2003 and 2008; non-dwelling burglary with intent to steal in 2003, 2004 and 2013; and attempted non-dwelling burglary with intent to steal in 2012.

On behalf of Mr Whitehouse, Mr Stephen Hamblett submitted that the sentence of four years was manifestly excessive on the grounds that the offence did not fall at the top end of the category 1 range and that two identified aggravating features were outweighed by the mitigating features present.

The Court held that the offence fell within category 1 of the relevant guideline because the victim was on the premises while the appellant was present. As to culpability, there was plainly a significant degree of planning or organisation, the burglars were equipped for burglary and they operated as a group. The Court agreed with the single judge that this combination of factors indicated a starting point significantly in excess of two years, even before consideration of further aggravating factors. The most serious of those further factors was the appellant’s multiple previous convictions for offences of dishonesty, particularly his previous convictions for burglary or burglary-related offences. The aggregate of all those aggravating factors indisputably took the offence towards the top of the range in category 1.

The Recorder had concluded that there were no factors specifically within the guideline that reduced seriousness or reflected personal mitigation. Mr Hamblett submitted that was incorrect. The Recorder had specifically recognised that the appellant had demonstrated steps taken to address his offending behaviour, a factor reducing seriousness. Further, there was a significant lapse of time since the offence which was not the fault of the appellant. He had pleaded not guilty to attempted robbery arising from the same events. He had not caused or contributed to the delay in bringing that alleged offence to trial and in the event had been acquitted by the jury of attempted robbery. Mr Hamblett also contended that the appellant had a subordinate role in the group. However, the Recorder had conducted the trial and was well placed to determine whether in truth all the offenders were involved together in the burglary each playing his respective part and to reject the contention that the appellant had a subordinate role within the meaning of the guideline. The Court had no proper basis for rejecting the conclusion reached by the trial judge on that matter.

Looking at these matters in the round, the Court did not conclude that the judge had carried out an improper balance between the gravity of the offence in terms of harm and culpability and the mitigating features. The term of four years reached by the Recorder might appropriately be described as tough but could not properly be described as manifestly excessive.

However, there was one further matter that did not seem to have been explicitly considered by the judge. The appellant had been on bail from January 2017 and was subject to a number of highly restrictive conditions: he was to reside at a given address; he was to abide by a curfew between the hours of 7 pm and 5 am daily, where the appellant was required to present himself to a police officer upon request; he had to report to a police station every Saturday and Sunday between the hours of 5 pm and 7 pm; not to contact any prosecution witnesses; and not to go to the public house in question. The Court noted that the terms of the curfew would ordinarily, if there had been a tag, have entitled the appellant to have the sentencing judge take into account the curfew and to reduce the final sentence by half the time spent on the restrictive conditions. That period was in excess of 20 months, towards 21 months. In these circumstances, the judge did have a discretion to take that matter into account, and the Court believed that that matter should have been taken into account and that it was open to this Court to do so. There was no statutory obligatory period in respect of the actual curfew that was imposed and therefore there was no precise quantitative time that could be taken. Nonetheless, in all the circumstances, the Court believed that a period of nine months was fair and reasonable to reflect that additional factor. The sentence therefore should not be one of four years’ imprisonment but three years and three months to reflect that factor and that factor alone.

In short, the appeal was allowed only to the extent of a reduction from four years to three years and three months to reflect the restrictive bail conditions, which the sentencing judge had not explicitly taken into account.

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