Imprisonment - Length of sentence - Burglary

R v Levesconte: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Maddison and Mr Justice Burnett): 24 November 2011

Section 143 of the Criminal Justice Act 2003, so far as material, provides: '(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.

'(2) In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction. (3) In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.'

The defendant, aged 22, entered the house of an elderly couple and stole about £70 in cash (the first burglary). He pleaded guilty to burglary and was sentenced to a total of nine months' imprisonment, suspended for two years, with other ancillary orders. Some four months later, before the same court, the defendant, who had a number of previous convictions, pleaded guilty in respect of a second burglary in a dwelling, which he had committed during the operational period of the suspended sentence.

The judge stated that, bearing in mind the background to the offences, a custodial sentence of 18 months' imprisonment was appropriate, but he increased that sentence to 2 years having treated, as an aggravating factor, the fact that the second burglary had been committed during the period of suspension for the first burglary. That was then reduced to 16 months' imprisonment to take account of the guilty plea. The suspended sentence was activated in full, to run consecutively. The total sentence was 25 months' imprisonment, less time spent in custody on remand. The defendant appealed against sentence.

He submitted that the judge had erred in increasing the starting point for the second burglary from 18 months to 2 years. The second burglary had been committed not long after the first. The judge had already taken that into account as an aggravating factor in concluding that the second burglary had merited an 18-month sentence. Accordingly, there had been in effect double counting.

It was further submitted that it was wrong both to activate the suspended sentence in full and consecutively arising out of the commission of the second burglary during its operational period, and then to increase the sentence for the second burglary because it had been committed during that operational period. Consideration was given to section 143 of the Criminal Justice Act 2003 (the 2003 act) and to the guidelines of the Sentencing Guidelines Council (the sentencing guidelines.) The appeal would be allowed in part.

Section 143 of the 2003 act (on determining the seriousness of an offence) required the court by sub-section (2) to treat each previous conviction as an aggravating factor if it could reasonably so be treated, and by sub-section (3) to treat the commission of an offence on bail as an aggravating factor; but it was silent as to whether or not the commission of an offence during the operational period of a suspended sentence was to be considered as an aggravating factor. The aggravating factors listed in paragraph 1.22 of the sentencing guidelines (on 'Overarching Principles: Seriousness') included not only previous convictions but also 'failure to respond to previous sentences' and 'offence committed whilst on licence'. The list did not include the commission of an offence whilst subject to a suspended sentence or a community sentence or conditional discharge (see [14] of the judgment).

In the instant case, there had been no element of double counting. Given the serious nature of the second burglary, the defendant could not have complained had the judge's starting point been 24 rather than 18 months. However, it had not been appropriate for the judge to have treated the fact that the offence had been committed during the operational period of the suspended sentence as a factor justifying the increase of the second sentence, not at least in circumstances where the suspended sentence had not been activated in full.

The defendant had already been dealt with for that very fact by the implementation of the full original sentence. To take it into account again when the judge was fixing the sentence for the second offence had been to increase the sentence referable to that fact beyond the maximum for which the defendant had been at risk. It followed that the sentence for the second offence should not have been increased as it had been. In the circumstances, the starting point before having regard to the plea should be 18 months and not 24 months (see [13], [15]-[17] of the judgment).

The sentence of 16 months' imprisonment imposed for the second burglary would be substituted by a sentence of 12 months' imprisonment, which the defendant would have received after a discount for his plea of guilty had the starting point remained at 18 months. The effect was to reduce the overall sentence from 25 months' imprisonment to 21 months' imprisonment (see [17] of the judgment).

Robert Grey (instructed by David Hurley Associates) for the defendant.