Siobhan Perry [2019] EWCA Crim 1838

Siobhan Perry v R [2019] EWCA Crim 1838 concerned an appeal against a total sentence of six years’ imprisonment for multiple burglaries and related offences. Mrs Justice Moulder, sitting with Lord Justice Fulford (Vice President of the Court of Appeal Criminal Division) and Sir Kenneth Parker, dismissed the appeal.

Ms Perry had been convicted in her absence after summary trial of one dwelling burglary and had pleaded guilty to further offences before the magistrates. She was committed for sentence pursuant to sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000. On 15 January 2019 in the Crown Court at Lewes she pleaded guilty to offences on indictment and was sentenced to a total of six years’ imprisonment. The sentence comprised six years’ imprisonment concurrent on three counts of dwelling burglary against Mrs Lowcock, six years’ imprisonment concurrent for dwelling burglary against Mrs Spillane, two years’ imprisonment concurrent for two counts of non-dwelling burglary from the Joe and Juice Café, and one year concurrent on multiple counts of fraud by false representation relating to two incidents. No separate penalty was imposed for failing to attend drug assessments, and one year concurrent was imposed for possession of a class A drug.

The facts disclosed a series of so-called distraction burglaries against elderly victims. Mrs Lowcock was 87 years old and lived alone in Bexhill. On 5 April 2018 Ms Perry approached her while she was walking home with shopping, claimed to need money to get home to London, and was invited in for tea. Mrs Lowcock gave her fifty pounds on the understanding it would be repaid. Two days later Mrs Lowcock discovered fifty pounds missing from her purse. On 8 April Ms Perry returned at 6.30 pm, claiming to want to return the money. She waved an envelope which, when opened, contained only a card. During this visit one hundred pounds and Mrs Lowcock’s HSBC bank card were stolen. On 9 April Ms Perry returned again but nothing untoward occurred. On 16 April a male arrived at Mrs Lowcock’s flat dressed in plain clothes, claiming to be a police officer and saying he had a female detained in his car outside. He demanded Mrs Lowcock’s PIN number and searched the flat freely. Mrs Lowcock locked herself in the bathroom, feeling intimidated. When she emerged she saw Ms Perry with the male. They ran from the flat. A neighbour had observed Ms Perry outside and had not seen her sitting in a car.

On 11 May 2018 Ms Perry attended the home of Mrs Spillane, aged 81, in SW15, claiming to be from the council and checking for leaks. Mrs Spillane let her in and showed her around the property, including the bedroom where she moved her handbag into the wardrobe. Soon after Ms Perry left, Mrs Spillane discovered her handbag had been taken, containing one hundred and sixty pounds cash, a house key and a bus pass. Ms Perry’s fingerprints were found on a blue folder left behind. In interview Ms Perry claimed she was a friend of Mrs Spillane’s daughter and had been in the house on several occasions, but Mrs Spillane stated she did not know her and had never seen her before.

In October 2017 at the Cricketer’s Public House in Richmond, Mr Harcourt’s rucksack was stolen containing his wallet and various cards. On 17 October 2017 Ms Perry used the card for various contactless payments at Tesco Metro, Wholefoods Market, Waitrose and Tesco Express. In December 2017 at the Joe and Juice Café, Ms Perry engaged two members of staff in conversation while her partner Mr Dundas went into a staff only area and stole a laptop bag containing a laptop belonging to Mr Gallion and a wallet containing sixty pounds and bank cards belonging to Mr Brooks. Multiple unauthorised contactless transactions followed at Sainsbury’s and Waitrose. The police identified Ms Perry and Mr Dundas from CCTV. On two occasions, on 30 January 2018 and 5 July 2018, Ms Perry attended St John’s Therapy Centre for drug assessments but left before they were completed. On 26 September 2018 when arrested she was found in possession of twenty small wraps containing cocaine.

Victim personal statements were before the sentencing court. Mrs Lowcock stated that she felt ashamed at having been taken advantage of and was out of pocket. The money stolen was part of her pension. She had to leave her flat temporarily to stay with her daughter. She felt nervous about returning to the flat and emphasised that she had not invited Ms Perry in on the second occasion but had been pressurised, as had occurred with the male on the third occasion. She now realised the last visit was an elaborate scam.

In sentencing, the judge applied the totality principle and gave credit for plea in all cases except the single count where Ms Perry was found guilty in her absence. He took account of her overall record, noting that she was a third strike burglar for domestic burglary and had a very substantial record including one count of intimidating a witness. He described distraction burglary of the elderly as disgraceful and despicable, leaving victims profoundly anxious as could be seen in the victim personal statements. He rejected the submission that the absence of violence was a material consideration. He stated that his primary duty was to protect the very elderly living alone. Whilst Ms Perry might have certain personal difficulties, her record over a very long period showed the truth was almost unknown to her and she was prepared to manipulate every situation to her advantage. It might be that she was in a coercive relationship with Mr Dundas, who was currently serving a prison sentence, but over the period of these offences and looking at her past history she had chosen her course and must take the consequences.

Ms Perry was aged 37 and had appeared before the courts on 15 previous occasions for 62 offences between 1998 and 2013. Most were for fraud and kindred offences, and theft and kindred offences, mainly shoplifting, obtaining property by deception, handling stolen goods and fraud. In 2012 she was sentenced to two years’ imprisonment for multiple fraud offences. In 2013 she was sentenced to 15 months’ imprisonment for perverting the course of justice.

The grounds of appeal were that the sentence in respect of the domestic burglaries was manifestly excessive. It was submitted that the judge was in error in sentencing significantly in excess of the sentencing guidelines; the judge was in error in sentencing under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000; the judge failed to take into account factors indicating lesser harm, such as the theft of items of low value and limited damage to property; he failed to consider issues of mitigation, namely mental disorder and exploitation by another; the judge failed to state which tariff was appropriate for each residential burglary and then to state the overall sentence; the judge failed to consider properly the background of the appellant and the wish of probation to assess her further.

The court accepted that the judge was in error in sentencing under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000. However, the issue was whether the sentence imposed was manifestly excessive notwithstanding this error. Whilst the application was to appeal only the sentence in relation to the domestic burglaries, the court was concerned with whether the overall sentence for the totality of the offending was manifestly excessive and therefore had to consider all the offences which were before the sentencing judge.

The court accepted that the sentence of eight years before credit for the guilty plea was in excess of the sentencing guidelines for a single offence of domestic burglary, but held that this did not of itself render the total sentence manifestly excessive. Mrs Justice Moulder considered the submission that the judge failed to take into account factors indicating lesser harm, such as theft of items of low value and limited damage to property, and the submission that he failed to consider matters of lower culpability such as mental disorder and exploitation by Ms Perry’s partner.

The court noted that the sentencing guidelines for domestic burglary required the court to determine culpability and harm caused or intended by reference to listed factors. Where an offence did not fall squarely into a category, individual factors might require a degree of weighting before making an overall assessment. In the case of the dwelling burglaries, the factors indicating greater harm were that the occupier was at home whilst the offender was present. Factors indicating higher culpability were that the victim was deliberately targeted due to vulnerability: Mrs Lowcock was 87 and Mrs Spillane was 81. In relation to the third offence against Mrs Lowcock, Ms Perry was clearly acting as a member of a group.

As to whether this should be placed in the category of lesser harm due to the value of the property involved, it was not necessary for all the factors indicating greater harm to be satisfied in order for that category to be met. In addition, the test under the guidelines was the value to the victim. As Mrs Lowcock stated in her victim impact statement, this money was part of her pension money, and it was therefore a reasonable inference that the value, whilst low in overall monetary terms, could be said to be significant to her. In all the circumstances this did not outweigh the factors of greater harm.

As to culpability, it was submitted that the judge failed to consider matters of lower culpability such as mental disorder and exploitation by another. In the pre-sentence report the author noted that Ms Perry described escalating physical and emotionally abusive behaviour from Mr Dundas and she said she committed the offences under significant duress from him, fearful of further physical assaults or a refusal to supply her with the drugs on which she was dependent. However, the author of the pre-sentence report observed at page four of the report that the court might form the view that that was an attempt on her part to minimise her culpability. As to her mental health, the pre-sentence report noted her longstanding history of mental health difficulties since the age of 15 but recorded the statement of Dr Patel, the consultant psychiatrist, that drug misuse rather than mental health difficulties appeared to be the primary factor in her offending to date. Accordingly, neither of these matters outweighed the high culpability of targeting elderly people in their own homes in this way.

It was also submitted in support of the appeal that the judge failed to state which tariff was appropriate for each residential burglary and then to state the overall sentence applying the totality principle. The guidelines for totality stated that where concurrent sentences were to be passed, the sentence should reflect the overall criminality involved and the sentences should be appropriately aggregated by the presence of the associated offences. The court’s approach therefore was to look at the overall sentences for the number of offences with which the court was concerned and consider whether this reflected all the offending which was before the court and whether in the light of that it was just and proportionate or could be said to be manifestly excessive.

Looking at the individual offences under the burglary guidelines for domestic burglary, the factor indicating greater harm was that the occupier was at home and the factor indicating higher culpability was the fact that the victim was vulnerable and deliberately targeted, as well as in the case of the third offence against Mrs Lowcock that Ms Perry was acting as a member of a group. Under the guidelines, for a single offence in Category 1, the category starting point was three years’ custody with a range of two to six years. The statutory aggravating factors in this case were the previous convictions: 44 offences of fraud and kindred offences, 13 offences of theft and kindred offences. As to the mitigation, there was very little in this case. As had been indicated, the submissions as to the mitigation advanced were not supported by the pre-sentence report. Accordingly, whilst for a single offence the starting point might have been in the range of three years, the judge was sentencing for three dwelling burglaries against Mrs Lowcock, the domestic dwelling burglary against Mrs Spillane, the non-dwelling burglary at the Joe and Juice Café and the fraud in the use of bank cards following the theft at the Cricketer’s Public House.

In relation to guidelines for non-domestic burglaries, factors indicating greater harm were that the victim was on the premises. The factor indicating higher culpability was that Ms Perry was acting as a member of a group. For the offence of non-domestic burglary, this was a Category 1 offence, a starting point of two years’ custody and a range of one to five years. There were the same statutory aggravating factors in the appellant’s previous convictions and the absence of any real mitigation. In relation to the sentencing guidelines for fraud by false representation, this related to the use of bank cards following the theft at the Cricketer’s pub and then also the use of the bank cards following the theft at the Joe and Juice Café. There was medium culpability where Ms Perry had a significant role and the offending was part of a group activity. Based on the value it would be Category B5, which would give a range from a fine to 26 weeks’ custody.

The principle of totality meant that the court did not merely aggregate the individual sentences. Looking at the overall offending in this case a sentence of eight years before credit for guilty plea was not in the court’s view manifestly excessive. The authorities relied upon by counsel, Parsonage [2014] EWCA Crim 306 and Mendoza [2015] EWCA Crim 1834, were of little assistance. First, each case had to be assessed on its own facts, and secondly, those particular cases involved less offending than was before the court in this particular case.

Finally, it was submitted that more time was required in order to assess Ms Perry. The Wandsworth Drug and Alcohol Service did indicate that they required further time to assess the appellant’s suitability for a drug rehabilitation requirement, but in the circumstances where, as acknowledged in the pre-sentence report, immediate custody was inevitable, the judge was entitled to reject the requirement for further time for suitability for drug rehabilitation to be considered. In relation to the domestic burglaries, these were very unpleasant offences in that they were targeted against elderly people in their own homes. The court then took into account the additional offences, albeit committed in the context of non-dwelling offences. Taking the overall offending into account, the court would not interfere if the total sentence was not manifestly excessive.

In short, the Court of Appeal held that despite the judge’s error in applying section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 and the fact that the starting point before credit for plea exceeded the guideline range for a single domestic burglary, the total sentence of six years’ imprisonment was not manifestly excessive when measured against the totality of the offending, which comprised multiple burglaries targeting vulnerable elderly victims in their homes, together with non-dwelling burglaries and fraud offences, all committed by an offender with an extensive criminal record and minimal mitigation.