[2025] EWCA Crim 1112

His Majesty's Solicitor General applies for leave to refer a sentence which she regards as unduly lenient. It is common ground that the sentence passed by HHJ Reid was unconventional. The questions for this court are whether it was unduly lenient and, if so, whether this court should intervene.

On 31 December 2022, the offender, who is a recidivist, with a long history of offences of dishonesty and a particular propensity for dwelling-house burglaries, broke into a flat in London SE16 while the occupants were out. In the flat he conducted what is euphemistically called an "untidy" search and stole a number of items having a total value in excess of £3,000. No victim impact statements were made. The offender was arrested on 17 February 2023 but refused to be interviewed.

The offender, who was aged 34 at the time, and is 36 now, has a terrible record of previous convictions. He has 34 previous convictions for 92 offences. These offences date from 2003, when he was aged 14 years, to 2024, when he was aged 35 years. They include driving offences, including dangerous driving, weapons offences, possession of controlled drugs (cannabis and cocaine), assaults including a number of assaults on constables and one offence of wounding/inflicting grievous bodily harm, failures to comply with requirements of court orders, breaches of court orders, including breach of a conditional discharge, failures to surrender, disorderly behaviour, dishonesty offences including dwelling burglaries and robberies. A number of his past offences were committed while on bail. He received his first custodial sentence, which was a detention and training order, in 2016. His offending until 2014 was dealt with in the Magistrates' Courts. He has been sentenced to a number of terms of imprisonment.

The offender is a "third striker" for the purposes of section 314 of the Sentencing Code. On 19 August 2016, he was convicted in the Crown Court at Inner London of burglary of a dwelling, contrary to section 9(1)(b) of the Theft Act 1968 committed on 2 February 2016. He was sentenced to a term of imprisonment of 45 months. On 11 March 2019, he was convicted in the Crown Court at Inner London of burglary of a dwelling, again contrary to section 9(1)(b) of the Theft Act 1968 committed on 24 August 2018, ie after the offender was convicted of the other domestic burglary. He was sentenced to a term of imprisonment of 3 years.

On 5 June 2024, the offender was sentenced in the Crown Court at Woolwich for a number of offences. Under indictment T20217317, there were various offences of dangerous driving, driving whilst disqualified, possession of cocaine and criminal damage, all committed on 18 October 2021. We need say no more about those offences. Under indictment U202204054, for one offence of dwelling-house burglary, committed on 16 November 2022, the offender was arrested on suspicion of this offence on 17 February 2023. He pleaded guilty to this offence at the PTPH on 17 May 2024 and was duly sentenced to 3 years’ imprisonment. Under indictment U20240455, for five offences of dwelling-house burglary, committed between 21 October 2023 and 11 March 2024, having been arrested on 12 March 2024, he pleaded guilty to those offences at the PTPH on 17 May 2024. In respect of each of those he was sentenced to 6 years' imprisonment concurrent.

The offender had evidently committed a series of dwelling burglaries, all in the southeast of London. He typically broke into the dwellings via a window and invariably carried out an untidy search. He stole small portable items of value such as cash, jewellery and electronics. The offence that he committed New Year's Eve, with which we are directly concerned, was entirely typical of the manner in which he committed these offences.

The burglary offences for which he was sentenced on 5 June 2024 were all offences that fell within category 1B, high harm and medium culpability. The starting point for each offence under the guideline was therefore 2 years, with a category range from 1 to 4 years. The sentencing judge said that, but for his plea of guilty, the sentence on the single offence under the indictment ending 0454 would have been 4 years and the sentences on the other burglaries would have been 8 years concurrent. Allowing 25 per cent for his pleas of guilty led to the imposed sentences of 3 years for the single offence and 6 years concurrent for the others.

The sentencing judge correctly recognised that the offender was then a three-striker because of the convictions in 2016 and 2019. It will immediately be appreciated that the offence with which we are directly concerned was committed after the single offence that was committed on 16 November 2022 and before the five that were committed between October 2023 and March 2024.

The effect of his being a three-striker has been recognised by all concerned at all material times. The court must impose an appropriate custodial sentence for a term of at least 3 years unless the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the offender and justify not doing so. A reduction may be made to reflect a plea of guilty and the reduction can reduce the sentence passed the minimum sentence provided that the sentence imposed is not less than 80 per cent of the appropriate custodial period of 3 years' imprisonment ie 876 days.

The offender having been arrested in February 2023, the forensic report that linked him to the burglary was available on 31 March 2023. The offender was not charged by postal requisition until 11 March 2025. The offender was arraigned at the PTPH in the Crown Court on 7 May 2025 and pleaded guilty. It is common ground that he was entitled to a 25 per cent reduction for that plea. He was then serving the sentence imposed on him on 5 June 2024.

A widely shared comment on the CCDS file from HHJ Newbery on 7 May 2025 stated:

It appears that HHJ Newbery made that comment on the understanding that the offender's early release date was 3 June 2025. We are now told that it is in fact 31 January 2026, although in our judgment that makes no difference to this Reference. So it was that the case came before HHJ Reid on 19 May 2025.