Kyle Bucknall [2019] EWCA Crim 1549

In R v Kyle John Bucknall [2019] EWCA Crim 1549 the Court of Appeal (Lord Justice Simon, Mr Justice Jeremy Baker and Mr Justice Freedman) dismissed an appeal against sentence for driving whilst disqualified, aggravated vehicle taking and attempted burglary of a dwelling.

The appellant, aged 27, pleaded guilty on 8 April 2019 in the Crown Court at Leeds to two counts of driving whilst disqualified (counts 1 and 2), aggravated vehicle taking (count 4) and attempted burglary of a dwelling (count 6). He was sentenced to three months’ imprisonment concurrent on each of counts 1 and 2, ten months’ imprisonment consecutive on count 4, and twenty months’ imprisonment concurrent on count 6, making a total of two and a half years’ imprisonment. He was also disqualified from driving for 39 months on count 4, comprising a discretionary period of two years and an extension period of fifteen months.

All the driving offences concerned a stolen Jeep Renegade which had been taken during a domestic burglary on 13 November 2018. On 11 December 2018 police in an unmarked vehicle followed the Jeep, now displaying false registration plates, along Roundhay Road in Leeds. The appellant appeared aware of their presence, performed a three-point turn, accelerated towards the police vehicle and then steered away and drove off. On 23 December 2018 officers saw him driving the Jeep along Scott Hall Grove displaying different false plates, with a passenger, and he drove away. On 5 January 2019 officers saw him driving the Jeep on Cranmer Bank with yet another set of false plates. Two police vehicles attempted to box the Jeep in, but the appellant rammed one, mounted the kerb, drove through a small gap between a parked vehicle and a hedge, then drove through a pedestrian entrance and across grass at about 40 mph before escaping. The Jeep was later found parked about 50 metres from the appellant’s home, with his house keys inside. The attempted burglary occurred on the afternoon of 6 January 2019 at a dwelling on Kingfield Mount in Leeds where a Mercedes was parked outside. The occupier and his two young children were inside when they heard someone trying the front door. CCTV footage showed the appellant approach the front door, try the handle and walk off across the garden. The occupier subsequently spent around £600 on extra security equipment. The appellant was arrested on 13 January 2019 and denied all offences in interview.

The appellant had an extensive criminal history over sixteen years including six separate court appearances for domestic burglary, as well as convictions for robbery and driving offences.

The sentencing judge indicated that, given the timing of the guilty pleas which were entered between the plea and trial preparation hearing and trial, he would afford a discount of one-sixth. He described the appellant as having a dreadful antecedent history for burglary and concluded he was a committed burglar. In respect of the attempted burglary, the judge determined that the period of custody prior to discount would have been 24 months, reduced by one-sixth to 20 months.

On appeal Mr Blatchford argued first that the discount for the guilty plea was insufficient bearing in mind the history of the proceedings, and secondly that the term of custody for attempted burglary was excessive.

The court addressed the attempted burglary first. Although the court envisaged that the appellant planned the offence, it accepted the planning was not of the nature and degree to indicate higher culpability. However, in relation to harm, not only was the occupier at home at the time with his two young children, but even if it could not be established that the target was the Mercedes parked outside, the court considered there was a significant degree of loss by reason of the extra security equipment acquired. The court considered that as a full offence of burglary, the circumstances would have justified a sentence at the upper end of the range for a category 2 offence under the relevant sentencing guidelines, namely two years’ imprisonment. The judge was required to acknowledge he was dealing with an inchoate offence, but was also entitled to reflect the significantly aggravating factor of the appellant’s repeated offending, especially for domestic burglary. Having carried out that balancing exercise, the court was satisfied that prior to the discount for the guilty plea, the judge was justified in selecting a period of two years’ imprisonment in respect of the attempted burglary.

Turning to the discount for the guilty plea, the court understood the appellant’s first appearance at the magistrates’ court took place on 14 January 2019, when he was committed for trial. The plea and trial preparation hearing took place on 11 February 2019, when the appellant pleaded not guilty and the matter was listed for trial on 9 July. In the meantime, the prosecution were ordered to serve any forensic evidence and dashcam material by 4 March 2019. This order was not complied with, and those representing the appellant had the matter listed for non-compliance on more than one occasion. The court accepted there may well have been informal discussions between the prosecution and those representing the appellant after the plea and trial preparation hearing and the compliance hearings relating to pleas of guilty which might be acceptable to the prosecution. However, the reality was that there was no forensic or dashcam material, and it was only shortly before 8 April 2019 that those representing the appellant had the case listed for mention with an indication that the appellant would enter pleas of guilty.

The court emphasised that full credit for a guilty plea is only provided to those who indicate they will plead guilty at the first available opportunity. In the present case the appellant denied the offences in interview. He did not indicate a guilty plea at the magistrates’ court and pleaded not guilty at the plea and trial preparation hearing when the matter was listed for trial. Therefore it was clear that not only was the appellant not entitled to full credit for the timing of his pleas of guilty, but nor was he entitled to the type of reduced credit which may be afforded to pleas of guilty entered at the plea and trial preparation hearing. Accordingly, the determination of the amount of credit was very much a matter of assessment for the sentencing judge, mindful of the ever-decreasing amount of credit (normally down to ten per cent) for guilty pleas entered at the commencement of the trial. In the court’s judgment, although the type of informal discussions which took place in the present case are to be encouraged, they will not be sufficient to trigger the obtaining of credit for any subsequent guilty pleas by an offender unless and until the offender has indicated to the prosecution and the court his intention to plead guilty. This was not done in this case until shortly before 8 April 2019. In the circumstances, the court saw no reason to interfere with the judge’s determination that, given the history of the proceedings, this only entitled the appellant to a limited degree of credit for his guilty pleas.

The court added that in relation to the order for disqualification, in addition to the discretionary period of two years, the appropriate order ought to have been expressed as an extension period of five months and an uplift of ten months respectively under sections 35A and 35B of the Road Traffic Offenders Act 1988. In short, the appeal against sentence was dismissed, with a minor correction to the proper formulation of the driving disqualification.