Stephen Stockdale [2019] EWCA Crim 1511

Stephen Anthony Stockdale v Regina [2019] EWCA Crim 1511 was an appeal against sentence heard by the Court of Appeal, which allowed the appeal and substituted a suspended sentence for the immediate custodial term imposed below.

Mr Stockdale pleaded guilty on 29 April 2019 at Liverpool Crown Court to one offence of burglary contrary to section 9(1)(a) of the Theft Act 1968. On 9 May 2019 Mr Recorder Jones QC sentenced him to 22 months and 14 days’ imprisonment. There was confusion over the calculation of days qualifying under section 240A of the Criminal Justice Act 2003 for time served on curfew, which was clarified as 28 days to be deducted from the sentence to be served.

The offence occurred on 19 February 2019 at approximately 3.30 in the morning when the complainant, who was alone at home with her husband and son elsewhere in the property, was awoken by her burglar alarm. She found the front door slightly ajar, closed it and returned to bed, assuming she had left it open herself. Later she discovered a draught and found a small window had been smashed. Police attended and found blood at the scene which, upon analysis, matched Mr Stockdale’s DNA. There were three separate areas of damage to the property: the front door, a rear door and the kitchen window. One door bore tool marks indicating that some implement had been used, though the precise tool could not be identified. Mr Stockdale was arrested and made no comment in interview.

The Recorder treated the case as category 1 under the Sentencing Council’s definitive guideline for burglary offences. He found that the presence of the occupier in the home was a factor indicating greater harm and that the use of an implement to gain entry indicated higher culpability. Whilst accepting there was an element of carelessness and lack of sophistication in the attempts, the Recorder concluded that category 1 applied, giving a starting point of three years. The Recorder increased that starting point to 40 months to reflect what he considered to be an aggravating feature, namely that the three separate attempts to enter constituted a sustained or repeated effort. This, in his view, negatived any suggestion that the burglary was spontaneous and demonstrated a determined attempt to gain entry. He then reduced the sentence from 40 months to 30 months to afford substantial mitigation for personal circumstances and the effect on others. A reduction of 25 per cent for the guilty plea, which was not entered at the very earliest opportunity, brought the sentence to 22 months and 14 days.

The sole ground of appeal, pursued by Mr Heckle, concerned whether the sentence should have been suspended. Mr Stockdale was 34 years old at sentence and had old previous convictions which the court put out of mind. He had one recent conviction from 5 March 2018 for theft by shoplifting. There was a history of alcohol abuse which, on his case, explained both the earlier shoplifting and this burglary. The pre-sentence report assessed him as genuinely remorseful, particularly for the impact on the occupier, and as posing a low risk of reoffending provided he kept his drinking within moderate bounds. The author recommended a 12-month community order with various activities. Mr Stockdale was employed in his own business, which provided direct employment to some individuals and indirect employment to others on a contractual basis. He also had a partner who would be affected by his imprisonment.

The Court of Appeal held that the Recorder was entitled to treat the offence as meriting category 1 classification and to increase the starting point to reflect the three separate attempts to gain entry. The resulting figure of 30 months before credit for plea was not manifestly excessive. The court also rejected any challenge to the Recorder’s refusal to give full credit for an earliest guilty plea.

However, the court found that the Recorder had erred in his approach to suspension. The Recorder had taken the personal mitigation, including the effect on Mr Stockdale’s partner and those he employed, into account to reduce the sentence from 40 months to 30 months, but had then held that those same factors could not additionally justify suspension. Mrs Justice McGowan, giving the judgment of the court, held that this was not the proper approach. Having assessed the correct length of sentence, the Recorder was required separately to consider whether factors relevant to suspension applied. The court referred to the definitive guideline on the imposition of community and custodial sentences, which identifies as factors indicating that suspension may be appropriate a realistic prospect of rehabilitation, strong personal mitigation and the fact that immediate custody will result in significant harmful impact upon others.

The court emphasised that a prison sentence was entirely merited for breaking into someone’s house in the middle of the night, which clearly crossed the custody threshold. Nevertheless, there were factors above and beyond those which had reduced the term by way of mitigation that would have justified suspension. These included the direct impact upon Mr Stockdale’s immediate family and, of significant importance, the loss of employment and the loss of the business that appeared to be working relatively well and providing employment to others. In combination with the prospect of rehabilitation being as good as the court was led to believe, the correct view was that the term should have been suspended.

In short, the Court of Appeal substituted a suspended sentence of 22 months and 14 days, suspended for two years, for the immediate custodial term, holding that the Recorder had failed properly to consider suspension as a separate exercise after determining the appropriate length of sentence.