Mark Rimmell [2019] EWCA Crim 1370

Mark Rimmell [2019] EWCA Crim 1370 was an appeal against sentence before Lord Justice Haddon-Cave, Mr Justice Popplewell and His Honour Judge Patrick Field QC, in which the Court of Appeal reduced a manifestly excessive sentence for commercial burglaries where the Recorder had moved too far above the guideline range.

Mr Rimmell pleaded guilty at the magistrates’ court on 18 December 2018 to three offences of burglary contrary to section 9(1) of the Theft Act 1968 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. He was also committed for breach of a suspended sentence passed at the Crown Court at Wood Green on 13 February 2018 for possession of Class A drugs with intent to supply. On 2 January 2019 at Snaresbrook Crown Court the Recorder sentenced him to 28 months’ imprisonment concurrent on each burglary count, with a consecutive sentence of 15 months from the activated suspended sentence, making a total term of 3 years and 7 months’ imprisonment. The single judge granted leave to appeal against sentence.

The three burglaries were committed between 9 and 26 November 2018 on separate occasions during the hours of darkness, all at non-domestic premises. The first, at Vision Consulting on Cranbrook Road in Ilford on 9 November, involved the appellant gaining entry through an open shutter, climbing scaffolding and smashing a first-floor window to access offices. He placed electrical items in a box ready to steal but left them when an alarm activated. He was later identified by DNA he left behind. On 20 November he broke into the Ley Street Chapel in Ilford and stole an Apple Mac laptop and a projector valued together at £900, throwing books and paperwork onto the floor. He was identified from blood found in the kitchen. The third burglary on 26 November was at the premises of Zian Stanley Ltd, also on Cranbrook Road. He entered through a window and damaged the front door and internal doors at a repair cost of £400. Several files and pictures were stolen. He was again identified from DNA at the scene. When arrested and interviewed on 17 December he answered no comment throughout.

Mr Rimmell had an extensive criminal record starting in August 1998, comprising 21 convictions for 43 offences, of which 20 were non-domestic burglaries and five were domestic burglaries. His last conviction for burglary was in June 2015 when he pleaded guilty to two non-domestic burglaries and one domestic burglary with eight other offences taken into consideration.

The Recorder found that each burglary fell within category 2 of the definitive guideline, with a starting point of 18 weeks’ custody and a category range from a low-level community order to 51 weeks’ imprisonment. He concluded that the appellant’s previous convictions were a statutory aggravating feature sufficiently serious to justify increasing the starting point substantially above the upper limit of the category range. The fact that the burglaries were committed at night and formed a series of offences also amounted to aggravating features. The Recorder allowed full credit for the guilty pleas, arriving at 28 months’ imprisonment on each count, which indicated a pre-plea sentence of 42 months for each burglary. He referred to the totality guideline and imposed concurrent sentences reflecting overall criminality appropriately aggravated by the associated offences. As to the suspended sentence order, originally 21 months suspended for 21 months, the Recorder concluded it would be unjust to activate the full term given that the appellant had completed 97 out of 100 hours of unpaid work and 14 out of 30 rehabilitation activity days, so he activated only 15 months consecutively.

The grounds of appeal were that the Recorder erred in adopting too high a starting point and moving outside category 2 for commercial burglaries, that insufficient account was taken of totality, that the Recorder had not given appropriate credit for the guilty plea at the magistrates’ court, and that the total sentence of 43 months was manifestly excessive. There was no appeal against the suspended sentence activation.

Mr Gross, on behalf of the appellant, argued that the total of 28 months for three burglaries of this type was excessive having regard to the guidelines. He conceded that the Ley Street Chapel burglary was category 2 but left open whether the others so qualified. He urged the Court to conclude that none of the offences justified moving outside the category 2 guideline in the manner adopted by the Recorder.

The Court noted that the Recorder’s sentencing remarks were brief, in part due to limited material put before him by the Crown. There were no victim personal statements and no evidence about the value of goods placed in the box at Vision Consulting, the damage done there, or the value of goods taken from Zian Stanley. All this material would have assisted in assessing seriousness and determining offence category. The Recorder approached the question broadly and placed each burglary in category 2 because in each case there were no factors demonstrating higher harm or greater harm or higher culpability, and equally no factors demonstrating lower harm or lower culpability.

The Court found that although the Recorder’s approach at stage 1 was unconventional, there was a proper basis for assessing these as category 2 burglaries. At Vision Consulting there was lesser harm because nothing was stolen, but the method of entry and organised search indicated significant organisation or planning and thus high culpability. At Ley Street Chapel a valuable laptop was stolen which might have been a significant loss to a chapel, though without a victim statement the Recorder could not find greater harm. It may have been open to find that the premises were targeted as vulnerable, suggesting higher culpability. In respect of Zian Stanley, files and pictures were stolen but their value and the effect of their theft on the business were unknown. The damage to several doors totalling £400 did not appear exceptional, thus lesser harm, but this had the appearance of a premeditated burglary by an accomplished burglar, indicating higher culpability.

The Recorder concluded that the aggravating features, particularly the appellant’s myriad previous convictions, increased the starting point substantially above the upper end of the category range of 51 weeks. Having taken into account totality, he arrived at an overall sentence for the burglaries that was three-and-a-half times the top of the range. The Court considered that having due regard to the overall seriousness of the burglaries, disruptive as they were to the proprietors of the three premises, and to the appellant’s poor record, such an approach resulted in a manifestly excessive sentence. Although there were aggravating features, they did not justify such a significant move beyond the top of the range. The Court held that individually each burglary warranted a sentence towards the upper end of category 2. When totality was taken into account, an appropriate sentence for all the burglaries before credit for plea was 2 years’ imprisonment. With full credit of one-third this was reduced to 16 months. The Court therefore quashed the sentences of 28 months’ imprisonment on each burglary and substituted sentences of 16 months’ imprisonment concurrent. The consecutive sentence of 15 months in respect of the suspended sentence order remained unaltered.

In short, the appeal was allowed in part because the Recorder had moved too far beyond the guideline range when sentencing for three category 2 commercial burglaries, resulting in a manifestly excessive sentence that was reduced from 28 months to 16 months concurrent on each count, leaving the total sentence at 31 months’ imprisonment.