Mark Pain [2019] EWCA Crim 433

In R v Mark Pain [2019] EWCA Crim 433 the Court of Appeal (Holgate J and the Recorder of Liverpool, His Honour Judge Goldstone QC) dismissed an appeal against a total sentence of four years’ imprisonment for burglary and two related fraud offences.

Mr Pain pleaded guilty to one count of burglary and two counts of fraud, the pleas having been entered at various stages with the majority tendered on the day of trial. He was sentenced on 9th August 2018 in the Crown Court at Teesside by the Recorder Jackson QC to four years’ imprisonment for the burglary with no separate penalty imposed for the fraud offences.

The offending occurred whilst the victim, Mr Keith Ellison, was serving a term of imprisonment beginning on 23rd December 2017. Mr Ellison had given his sister the key to his rented flat so she could look after it. Mr Pain, a long-term friend of the victim and aware he was in custody, contacted the Coast and Country Housing Association impersonating Mr Ellison and claimed to have mislaid his keys. He requested that the locks be changed. Having obtained the new keys through this impersonation, Mr Pain entered the flat and stole a television, clothing and a bank card. On 13th January 2018 he attended a pawn shop in Middlesbrough where he sold the victim’s television for sixty pounds. The offending came to light when the victim’s sister could not access the flat due to the changed locks and made enquiries with the Housing Association. When arrested and interviewed, Mr Pain claimed he had the victim’s permission to enter the flat to obtain money to send to him, a position he maintained until the day of trial.

The Recorder noted that whilst the first fraud offence was the means by which the burglary was committed and was an aggravating feature of it, albeit a very aggravating feature, the second fraud offence was committed two weeks later and was entirely separate. The Recorder therefore approached sentence by considering whether a total of four years’ imprisonment, after credit for plea, infringed the principles of totality rather than assessing the burglary in isolation.

The Recorder found this to be a category 2 domestic burglary. He correctly identified the aggravating features as Mr Pain’s criminal record, premeditation and the abuse of position in that the victim was a friend and the premises were targeted for burglary. Mr Pain was a third-strike burglar with qualifying convictions for domestic burglary in June 2006 and February 2009. He also had numerous convictions for robbery and other dishonesty offences. His offending was driven by drug addiction. Applying the relevant sentencing guideline and section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the Recorder arrived at a starting point of four and a half years’ imprisonment. With ten per cent credit for the guilty plea, the sentence of four years was imposed.

On appeal Mr Turton submitted that the Recorder should have taken as his starting point the three-year minimum term prescribed by section 111 and gone no higher, given this was a category 2 burglary which, standing alone, would not have attracted a starting point greater than two years. He did not challenge the ten per cent discount for plea but argued that none of the aggravating features, correctly identified as such, entitled the Recorder to reach a starting point of four and a half years.

The Court of Appeal rejected this submission as unrealistic. The definitive guideline made clear that recent relevant convictions were likely to result in an upward adjustment and that in some cases, having considered factors which increased seriousness, it might be appropriate to move outside the identified category range. The Court emphasised that Mr Pain’s status as a third-strike burglar told barely half the story. Over and above his previous convictions for dwelling-house burglary and general dishonesty committed over a prolonged period, he had numerous previous convictions for non-dwelling burglaries and two convictions in 2013 and 2015 for attempted dwelling-house burglaries. He had committed the instant offences whilst on licence following his release from a ten-month sentence imposed in August 2017 for fraud and theft offences and in consequence of the partial activation of a suspended sentence order. The culpability in the offence itself was of the highest order.

The Court held that the Recorder was entitled to depart from the guidelines to the extent of elevating the burglary to a category 1 offence, for which the starting point was three years’ custody with a range of two to six years. Having regard to the principles of totality, it was impossible to say that a starting point of four and a half years was manifestly excessive. There was and could be no criticism of the discount afforded for the belated pleas. In short, the total sentence of four years’ imprisonment after appropriate credit for plea was neither wrong in principle nor manifestly excessive in light of Mr Pain’s extensive record, the targeted and premeditated nature of the burglary involving abuse of trust, and the separate further fraud offending committed whilst on licence.