December’s Q & A With Jason Elliott

Q. I’m a burglar by trade, but the trouble is that I keep getting caught and the sentences keep getting longer and longer. I’ve just been arrested and remanded again. My barrister came to see me and she said that the Sentencing Guidelines don’t apply in a case like mine. Is that true?


A. Section 125(1) Coroners and Justice Act 2009 provides that when sentencing offences committed after 6th April 2010 Judges have to follow any sentencing guideline which is relevant to the offender’s case “unless the court is satisfied that it would be contrary to the interests of justice to do so.”

As you probably appreciate, a Court sentencing an offender for a third qualifying domestic burglary, the Court must impose a sentence of at least 3 years “unless it is satisfied that there are particular circumstances which relate to any of the offences or the offender which would make it unjust to do so.” (Section 111 Powers of the Criminal Courts (Sentencing) Act 2000.

When passing a sentence for offences of burglary, the first step is to determine the starting point and category by reference to harm and culpability. The sentencing guideline contains a definitive list of factors that are relevant for these purposes. Your history of previous offending isn’t a relevant factor for these purposes. However, once the Judge has decided on a category range and starting point, he or she will then consider what factors aggravate or mitigate the sentence. These factors result in an upward or downward adjustment to sentence. The Guideline specifically says in this context that “In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.”

The Court of Appeal recently considered this issue in R v Spence [2017] EWCA Crim 904. The sentencing Judge had imposed a sentence of 5 years’ following a guilty plea for an offence that was accepted to fall within Category 2 of the Guidelines. The appellant had 34 convictions for 80 offences, and had been released from prison around 4 weeks prior to the commission of the index offence. The Judge decided to pass a sentence outside the Guidelines. The Court set out the appropriate way of sentencing in cases where the starting point suggested by the Guidelines was less than the ‘mandatory’ minimum sentence –

“…The judge should have considered the guidelines having identified this as a Category 2 offence by reason of greater harm but lower culpability. He should then have identified any additional aggravating and mitigating factors, coming to a figure from which he should have deducted credit for the guilty plea, and then ensured it was not less than the minimum provided for by the statute in these circumstances.” [6]

The Court said that there was no need to sentence outside the Guidelines because the previous convictions and the fact that the offence had been committed whilst on licence were aggravating features that could elevate a Category 2 offence into Category 1.

Applying this process but then allowing appropriate credit for a guilty plea, the Court reduced the sentence to 40 months.



Q. I didn’t tell the Social that my partner had moved in with me. When they found out they said that I wouldn’t have been entitled to my benefits if I’d been honest about our joint income, and that I’d received more than £29,000 that I shouldn’t have. I pleaded guilty at the earliest opportunity and my lawyers explained that I was very sorry. I was sentenced to 3 years’. Should I appeal?


A. In R v Hedman [2017] EWCA Crim 830, the appellant was convicted of 5 counts of dishonestly failing to notify a change in circumstances. She received a 20 months’ prison term. The offending related to a failure to notify that she had savings in excess of the threshold for receipt of the permitted limit. The benefits that the appellant had received totalled £30,527.81, of which £500 had been returned. The fraud had carried on for about 5 years.

The Court of Appeal pointed to the Sentencing Guidelines for offences between £10,000 and £50,000 which ranged from a medium level community order to 21 months’ custody. The starting point of 26 weeks was based on a fraud of £30,000.

The appellant didn’t have any relevant previous convictions and was the sole primary carer for dependent relatives.

The Court pointed out that a sentence of 20 months was at the upper end of the sentencing bracket and was excessive. They substituted a sentence of 15 months.

You should certainly seek advice on appeal.

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