Neutral Citation Number: [2011] EWCA Crim 2121
No: 2011/1823/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 20 September 2011
 
B e f o r e:

LORD JUSTICE RICHARDS
MR JUSTICE KEITH 
MR JUSTICE NICOL 

R E G I N A 

v 

MAURICE FLANDERS

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J U D G M E N T 
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1.	MR JUSTICE NICOL:  The appellant was sentenced to five years' imprisonment on 3rd March 2011 by His Honour Judge Edmunds at Isleworth Crown Court.  He had pleaded guilty to a dwelling‑house burglary.  He appeals against sentence by leave of the single judge.
2.	The offence took place in the middle of the night on 1st July 2010.  The family, a mother, father and child, were asleep upstairs.  In the morning the child came down and discovered that the flat screen tv, an X‑box games console, a camera (a Sony Cybershot), a briefcase and a child's school bag were missing.  In total the value of the items taken was about £750.  The living room window downstairs had been left slightly ajar and that is how the appellant appears to have gained entry.  A shoe mark was found near the window which led in due course to the appellant's identification.  
3.	Initially the appellant pleaded not guilty.  He changed his plea about two‑and‑a‑half weeks before the date fixed for trial.  
4.	The appellant, who is now 44 years old, has a substantial number of previous convictions, principally for offences of dishonesty.  Notably they include three previous dwelling‑house burglaries and another burglary of a non‑dwelling‑house.  His last conviction before the present offence was in November 2006 when on a plea of guilty he was sentenced to three years concurrent for two dwelling‑house burglaries.  He was released from that sentence in 2008.  He had stayed out of trouble for the following two years, due, it seems, to his commitment to looking after his mother and a new relationship.  But financial troubles had led him back into crime.  
5.	In passing sentence, the judge said this:  
"No treatment option which could provide a sensible measure of protection for the public from your repeating this sort of offending and certainly nothing which would make the imposition of the minimum sentence unjust.  
In your case I have reached the conclusion that the only way to protect the public from further offences by you is to pass upon you the maximum sentence that I think is justified by this offence and your record.  
... 
Taking in your case my principal task as being protection of the public from further offences by you, the sentence will be one of five years' imprisonment."  
The judge's reference to the minimum sentence was to section 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 which provides for a minimum term of three years' imprisonment for a third domestic burglary unless such a sentence would be unjust.  The minimum term applies of course to a fourth or subsequent domestic burglary.  
6.	On his behalf, Mr Harris advances two grounds of appeal.  First he says the judge erred in principle in choosing the maximum sentence that was justified by the offence and the appellant's record.  He observes that the Criminal Justice Act 2003, section 153(2), provides that, with immaterial exceptions, the custodial sentence must be the shortest term which in the opinion of the court is commensurate with the seriousness of the offence.  Secondly, Mr Harris submits that the judge must have taken too high a starting point.  The judge said that he would give "some credit" for the late plea of guilty without specifying exactly how much.  Mr Harris accepts that the reduction could not be as much as one‑third because it was presented late.  On the other hand, this was not a plea that was entered on the day of trial.  If the judge had followed the Sentencing Guidelines Council's recommendation the reduction should have been, Mr Harris submits, in the order of 25 per cent.  On this basis the judge appeared to have adopted a starting point, assuming a contested trial, of about six‑and‑a‑half years.  Mr Harris submits that even taking the appellant's poor record into account that was manifestly excessive.  
7.	We consider that there is force in both submissions.  The protection of the public from further offending is of course a proper sentencing objective, but in accordance with section 153 of the 2003 Act, the judge must choose a sentence of the shortest term commensurate with the seriousness of the offence.  On the contrary, what Judge Harris said he was doing was selecting the maximum sentence which was justified by the offence and the appellant's record.  That is not consistent with the statutory requirement.  Furthermore, we agree that a sentence of six‑and‑a‑half years would have been excessive if this appellant had continued with his plea of not guilty.  We do not underestimate the seriousness of a burglary of dwelling‑house, particularly at night‑time and particularly when the house is occupied.  In addition, this appellant had a poor record for just such offences.  He had not been deterred by a relatively recent sentence of three years' imprisonment.  Nonetheless, it is important to keep a sense of proportion.  This was not a case where wanton damage had been done.  The occupants were oblivious of the intrusion while it occurred.  In our view if the trial had been contested a sentence of five years' imprisonment would have been appropriate.  The appellant's plea did avoid the necessity of witnesses attending on the listed trial date, but it was late.  In our view a 20 per cent deduction was as much as he could expect.  
8.	Consequently the sentence of five years' imprisonment will be quashed.  A term of four years will be substituted.  The 127 days spent in custody on remand will count towards that sentence.  To this extent the appeal succeeds.