Szutowski [2019] EWCA Crim 645

Regina v Krzysztof Szutowski [2019] EWCA Crim 645 concerned an appeal against sentence by a 36-year-old offender who had pleaded guilty to four counts of dwelling-house burglary before the Honorary Recorder of Bristol on 20 August 2018. The Recorder had sentenced Mr Szutowski to three years’ imprisonment concurrent for each of two pairs of burglaries, with the pairs consecutive to one another, making a total of six years’ imprisonment. The Court of Appeal (Criminal Division) allowed the appeal and reduced the total sentence to 54 months.

The first burglary took place on 31 January 2018 at a semi-detached home in Bristol. Vigilant neighbours saw two males arrive by car and heard banging at the rear of the property. Police attended and confirmed a break-in. The householder returned to discover a messy search and property worth just under £3,000 stolen. Mr Szutowski was linked to the scene by blood recovered from smashed glass in a rear door. The second burglary occurred on 5 February 2018 at a semi-detached property in Bedminster. A kitchen window was smashed, the house was searched untidily, three jewellery boxes were emptied, and a laptop computer and sunglasses were stolen. The appellant was again linked by blood at the point of entry and on a bed sheet.

The third burglary took place on 9 July 2018 at the Old Wagon House in Bristol. A neighbour saw an unoccupied small vehicle on the driveway shortly after the householder left. A grandmother clock and a mirror with a combined value exceeding £4,000 were stolen. CCTV footage captured the registration number of the car, which was also used four days later in the fourth burglary on 13 July at Hunstrete, Marksbury. The householder returned to find a first-floor window forced open, bedrooms searched, and a significant amount of jewellery with both real and sentimental value stolen. Later on 13 July the appellant was stopped driving the Ford Fiesta linked to the July burglaries. A search of the vehicle revealed £500, various tools, and the mirror stolen on 9 July. In interview Mr Szutowski claimed not to remember the burglaries and could not account for his blood at the scenes.

The Recorder categorised the offences as falling within Category 1 of the Sentencing Council’s Definitive Guideline for Dwelling-house Burglary, with elements of greater harm including significant loss to the householders (particularly in sentimental terms) and untidy searches in two cases, and higher culpability including planning required to commit burglaries as far apart as those concerned. The judge also noted that the July burglaries were aggravated by the use of a car. The starting point for a Category 1 offence is three years with a range of two to six years. The Recorder found aggravation in the fact that the first set of offences was committed very shortly after the imposition of a community order for going equipped for theft. He therefore took a starting point of four years’ imprisonment for each set of offences, reduced by 25 per cent to reflect the timing of the guilty pleas, resulting in three years for each pair, with the pairs consecutive to one another.

On appeal Mr Comer, who had not appeared below, argued that whilst the categorisation and the decision to impose consecutive sentences could not be faulted, the overall starting point of eight years failed to take account of personal mitigation. This included the fact that it was Mr Szutowski’s first custodial sentence, that in 2015 he had suffered a brain haemorrhage leading to a breakdown and the loss of his marriage, and that the offences lacked many aggravating features often present in dwelling-house burglaries, notably that none of the properties was occupied at the time and all were committed during daylight hours.

The Court of Appeal accepted that there was force in the submission that the overall sentences failed to take sufficient account of mitigation and offended against the principles of totality. The court concluded that the sentence was manifestly excessive. The court reminded itself that the sentencing guidelines referred to a single offence and held that justice would have been met had the starting point for each set of burglaries been the three-year guideline starting point, on the basis that the aggravating and mitigating features cancelled each other out. After discount for plea, the sentence for each pair of burglaries should have been 27 months’ imprisonment. The court accordingly quashed all four sentences of three years and substituted sentences of 27 months for each count, with the sentences on counts 1 and 2 concurrent with each other, the sentences on counts 3 and 4 concurrent with each other, but each pair consecutive to the other, making a total of 54 months’ imprisonment. In short, the appeal was allowed and the total sentence reduced from six years to 54 months on the ground that the original sentence was manifestly excessive in failing properly to account for mitigation and totality.