Lee Alan Turner [2019] EWCA Crim 1055

R v Lee Alan Turner [2019] EWCA Crim 1055 concerned an appeal by Mr Turner against a total sentence of six years’ imprisonment imposed in the Crown Court at Newcastle-upon-Tyne for two domestic burglaries and related offences; the Court of Appeal (Lord Justice Green, Mr Justice Spencer and Mr Justice Morris) dismissed the appeal.

On 1st October 2018 the appellant pleaded guilty to five offences on two indictments. On 9th October 2018 he was sentenced for domestic burglary and theft on the first indictment to 30 months’ imprisonment and 12 months concurrent respectively, and on the second indictment to 42 months consecutive for domestic burglary, 12 months concurrent for theft and 12 months concurrent for aggravated vehicle taking contrary to section 12A of the Theft Act 1968, making a total of six years’ imprisonment. He was also disqualified from driving for five years under section 34 of the Road Traffic Offenders Act 1988.

On 7th June 2018 Mr Steven Hamill left his house briefly to collect a birthday present from his car. He retrieved the car keys from inside, went to the car, and returned indoors closing but not locking the patio doors. While he was upstairs the appellant entered through those doors, took the car keys, his partner’s handbag and a Mercedes C200 containing sunglasses. The appellant drove to his girlfriend’s address and caused a disturbance. A police chase ensued in which the vehicle was damaged. The appellant abandoned the car and evaded arrest but was later identified by CCTV and DNA from a discarded jacket. He was granted conditional police bail. On 26th August 2018, whilst subject to that bail, the appellant knocked on the door of Ms Karan Mehta and offered to clean her driveway. She invited him to view the work required and walked around the side of the house, leaving her keys in the rear of the door. The appellant did not follow. When Ms Mehta returned she saw him near the garage. They discussed the work and he said he would return the next day. Suspicious, she went back outside and saw her Volvo with its lights on and engine running. She ran towards the car and banged on the window, but the appellant drove off at speed. Within an hour he was seen having crashed into a metal fence at a local school, causing damage.

The judge noted that the appellant was a three-strike burglar falling for sentence under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 for the fourth and fifth times. He remarked that there was a degree of planning in both offences, particularly the second which was a distraction burglary, and that both targeted occupied dwellings and high-value items. He considered both capable of being treated as category 1 cases under the guideline. The overwhelming aggravating feature was the appellant’s record. The appellant had 32 convictions for 75 offences including domestic burglaries in 2005, 2006, 2007, 2012 and 2015, the last three of which were third-strike burglaries attracting minimum sentences of three years. He also had convictions for attempted robbery and several for aggravated vehicle taking. The judge indicated that the second indictment merited 25 per cent credit for plea and the first, where a not guilty plea was entered at the plea and trial preparation hearing, 15 per cent. Starting with four years for the first burglary after trial he reduced that to three years two months (noting that this represented a reduction slightly greater than 15 per cent). For the second burglary, committed on bail and involving aggravated vehicle taking, he started at five years and reduced by 25 per cent to three years eight months. He then reduced the total from six years ten months to six years to reflect totality. The thefts and aggravated vehicle taking received concurrent sentences of 12 months each. Defence counsel sought a review, submitting that the parties had agreed both burglaries fell within category 2, not category 1, of the guideline. In a further ruling the judge maintained that the first burglary was clearly greater harm and, while accepting the first might involve less than significant planning, rejected that it was impulsive; the appellant had no doubt been trying doors. The second was a distraction burglary requiring forethought. Even if both were top of category 2, the appellant’s record justified the sentences passed.

On appeal Ms Rachael Hedworth submitted that the offences were not of the worst kind and neither fell within category 1. She accepted that while the occupiers were present there were arguably no other factors indicating greater harm or higher culpability. The cumulative effect was that the offences would have attracted about eight years after trial, which was too long even taking account of previous convictions. She argued that a higher discount should have been applied on totality principles and that the combined sentence was manifestly excessive. She accepted that the minimum term provisions applied separately to each burglary so that each carried a minimum of three years less discount for plea.

The Court of Appeal held that the correct approach was to assess the appropriate sentence for each index offence by reference to the Sentencing Council guideline and only then to consider the application of section 111. As to the first burglary, there were two factors indicating greater harm: significant loss and the occupier being at home. On culpability, the Court agreed with the judge that the degree of planning might not be classified as significant within the meaning of the guideline but was far from impulsive given the appellant’s expertise and record and the circumstances described. Even assuming category 2 applied, the top of the range was two years and the appellant’s record of relevant previous offending was so substantial as to warrant a sentence going beyond that range in accordance with the express terms of the guideline. When adjusted upwards to reflect the concurrent 12 months for theft and the fact that the judge had in fact given slightly more than the intended 15 per cent discount, a sentence of three years two months before totality reduction was not manifestly excessive. As to the second burglary, it was committed on bail and a consecutive sentence was appropriate. There was greater harm. The Court considered that on the judge’s findings there was a significant degree of planning within the meaning of the guideline and the offence fell within category 1. In view of the record and the concurrent sentences on other counts, the judge was entitled to sentence towards the top of category 1 and five years after trial was not excessive. The judge had properly reduced the combined total from six years ten months to six years to reflect totality. Applying the cross-check of the minimum sentencing provisions each sentence as passed exceeded the minimum required following a guilty plea. The Court noted that the sentence of 12 months for aggravated vehicle taking was lawful because the offence had been sent to the Crown Court as an either-way matter and the value of the damage to the fence was not known. In short, the Court found no grounds to overturn the sentence and dismissed the appeal.