McNeil & Lewis [2019] EWCA Crim 1723

Tony McNeil and Leighton Lewis v Regina [2019] EWCA Crim 1723 concerned appeals against sentence by the Court of Appeal Criminal Division, which allowed both appeals and reduced the custodial terms imposed for burglary.

On 3 December 2018 at Carlisle Crown Court both appellants pleaded guilty to burglary of a non-dwelling contrary to section 9 of the Theft Act 1968, having originally been charged with aggravated burglary. On 11 February 2019 His Honour Judge Davies sentenced Mr McNeil to one year and ten months’ imprisonment and Mr Lewis to two years and four months’ imprisonment.

The appellants had travelled together to a property in Petteril Street, Carlisle, on 31 October 2018 intending to steal five kilograms of cannabis which they believed to be present and which Mr Lewis planned to sell, paying Mr McNeil once the drugs had been sold. At around midday they gained access to the rear yard, one scaling the perimeter wall and opening the garage front door to admit the other. They then attempted to enter the house itself through the rear door, which was locked. Mr McNeil had brought an axe, which he claimed in his basis of plea was for protection and to gain access to the garage if needed, though he denied intending to hurt anyone. A witness observed the appellants’ movements and contacted the police. Upon hearing police sirens the appellants fled empty-handed and were detained nearby. Both made admissions in interview. Mr Lewis denied knowing Mr McNeil had an axe. A Newton hearing took place on 11 February 2019 in relation to Mr Lewis’s basis of plea. The judge concluded he could not be sure Mr Lewis had possessed the axe himself but was sure he must have become aware as events unfolded that Mr McNeil had it. The judge found the axe was not intended to injure anyone but would have acted as severe intimidation and a deterrent to any occupier.

Mr McNeil was aged 27 with previous convictions on 28 occasions for three offences including theft. Mr Lewis was aged 26 and of previous good character. The judge described the offence as a serious planned offence targeting a substantial quantity of cannabis for sale. He rejected a defence submission that the offence fell within Category 2 of the Sentencing Council’s burglary offences definitive guideline for non-domestic burglary, which would have reflected lesser harm and higher culpability. The judge accepted that if he followed the defence logic there was lesser harm, given that nothing had been stolen, there was no ransacking, no victim present and no victim trauma. However, he proceeded immediately to address culpability and concluded this was a higher culpability case involving deliberate targeting for the selling and distribution of cannabis, significant planning and the carrying of an implement. He therefore categorised the offence as Category 1, attracting a starting point of two years’ custody and a sentencing range of one to five years. The judge arrived at a sentence of 36 months before personal mitigation, reduced to 33 months, then afforded Mr McNeil full one-third credit for his guilty plea, resulting in 22 months. Mr Lewis received 20 per cent credit due to the Newton hearing, resulting in 28 months’ custody.

On appeal Mr Knox for Mr McNeil and Mr Kelly for Mr Lewis both submitted that the judge erred in categorising the offence as Category 1 rather than Category 2, noting the prosecution had not contended there was greater harm. Both counsel submitted that even if Category 1 were correct, a three-year starting point was too high given the guideline starting point of two years. Mr Knox further contended the judge failed to have sufficient regard to character references and noted Mr McNeil had already served the equivalent of a 12 month sentence on remand, suggesting immediate release would have been more appropriate after discount. Mr Kelly submitted that Mr Lewis should have received more than 20 per cent credit because the Newton hearing found he did not himself possess the axe and he had made admissions in interview.

Mr Justice Picken, giving the judgment of the court, held that the judge had erred in categorising the burglary as Category 1. The judge had not explained why he disagreed with the defence submission that there was lesser harm. After recording that submission and acknowledging that if he followed that logic there was lesser harm, the judge said nothing further on harm and instead addressed culpability, as to which there was no dispute. None of the greater harm factors in the guideline applied. There was no theft or damage causing significant loss, no soiling or ransacking, no victim on the premises, no trauma caused, no violence used or threatened and no general public disorder. Both lesser harm factors applied: nothing was stolen and there was at most limited damage or disturbance to property, in fact none at all. Even though the offence involved higher culpability, Category 1 required both greater harm and higher culpability. The judge was therefore wrong to sentence by reference to a category with a range of one to five years and a two-year starting point. Category 2 had a range from a low level community order to 51 weeks’ custody with a starting point of 18 weeks’ custody. The sentences could not stand.

The court nonetheless considered that given the particular and serious features identified by the judge concerning higher culpability, the judge would have been justified in going outside the Category 2 range. A more appropriate sentence before considering aggravating factors, factors reducing seriousness or personal mitigation would have been 24 months. The court had in mind the targeting of the premises to an extent but more particularly the significant degree of planning and organisation involved in deciding to raid a location known to have cannabis there with the intention of obtaining a not insubstantial quantity to sell for profit. This was not a police raid but one by people looking to profit, which substantially heightened culpability. The carrying of an axe and being equipped for burglary also justified that level. There was otherwise no reason to increase the starting point by reference to the guideline. None of the factors increasing seriousness applied. Mr McNeil’s previous convictions did not include burglary. As for factors reducing seriousness or reflecting personal mitigation, Mr Lewis had no previous convictions and despite his previous convictions Mr McNeil appeared well regarded. Both showed remorse. These matters justified a modest reduction to 21 months in each case.

The court then addressed discount for guilty plea. Mr McNeil had received full one-third credit from the judge and his sentence was therefore appropriately reduced to 14 months. As for Mr Lewis, the court rejected the submission that 20 per cent credit was insufficient. The consequence of Mr Lewis’s continued denial that he was aware Mr McNeil had the axe was that a Newton hearing had to take place. The fact that at the hearing he succeeded on whether he himself had the axe was not the important point. What mattered was that there had to be a Newton hearing at all in relation to the awareness issue, which he lost. The judge had a discretion on credit and exercised it appropriately. Mr Lewis’s sentence was reduced to 16 months’ imprisonment, which through rounding down represented slightly more than 20 per cent. The court also confirmed that days spent on remand or on qualifying curfew should be taken into account for release dates and corrected a minor error concerning the victim surcharge in Mr McNeil’s case, confirming the correct sum was £140 not £170.

In short, the appeals succeeded because the judge wrongly categorised a lesser harm, higher culpability burglary as Category 1 when it should have been Category 2, though the particular features justified a sentence outside the normal range; the sentences were reduced to 14 months for Mr McNeil and 16 months for Mr Lewis.