Mark Pain [2019] EWCA Crim 433

The appellant was sentenced to 4 years’ imprisonment for burglary and two offences of fraud. While a friend was in prison, the appellant impersonated him, got the locks changed on his friend’s flat, obtained a key and gained access, stealing items. The first offence of fraud was the means by which the burglary was committed. The second occurred later and could have been the subject of a consecutive sentence.

The appellant was a third strike burglar, culpability was of the highest order, and he had numerous convictions for non-dwelling burglaries, attempts and other dishonesty offences. The offence was also committed whilst on licence.

Held: the Recorder was entitled to depart from the guidelines to the extent of escalating the offence to a category 1 offence. Having regard to the principle of totality, it is impossible to say the starting point was manifestly excessive nor could there be criticism of the discount given for plea.