Notices
Statement in repsonse to inaccurate comments on the guidelines issued by this court on 19 December 2002 as to the sentencing of domestic burglars
Purpose of the Statement
1. On 19 December 2002, judgment was given in the appeals of McInerney and Keating. The judgment set out guidelines as to the sentencing of domestic burglars.
2. This Statement does not modify, alter or retract any part of that judgment. Only the judgment must be referred to for the terms of the guidelines. The sole purpose of this Statement is to correct inaccurate comments which are repeatedly being made as to the guidelines. Correction is vital, since, if the inaccuracies stand uncorrected, the public will be left with a totally wrong impression as to the guidelines. This could seriously harm the public, by reducing, without justification, their confidence in the criminal justice system. The media is urged to avoid this by giving full coverage to this Statement.
Protection of Victims
3. It is wrongly suggested that the Court is more concerned with the offenders than their victims. In fact, the Court commenced its judgment by reaffirming the comments of Lord Bingham in the previous guideline case of R v Brewster. These reflect the long established approach that the consequences to the victim should always be of the greatest significance in determining the appropriate punishment. Lord Bingham stressed that burglary is always a serious offence because it "leaves the victim with a sense of violation and insecurity". This is true "even when the victim is unaware at the time that the burglar is in the house" ( paragraph 2). The judgment states that it is the intention of the Court "that the guidance … should provide greater protection [for the public] than is provided at present", given that burglaries cause "great distress" ( paragraph 38). In the present case, the Court gave effect to this principle by imposing respectively sentences of three and a half and three years in the cases of McInerney and Keating while allowing their appeals.
The starting point is not the end point
4. It is also suggested that the Court recommended that all first or second time burglars, who might otherwise be sentenced to up to 18 months imprisonment, should be given a community sentence. In fact, the Court made the recommendation of a community sentence as a starting point. A starting point does not mean any more than the point at which the sentencer should commence the determination of what is the correct sentence. In many cases it will not be the actual sentence because it will not be the appropriate sentence.
5. The Court stated that "the initial approach of the courts should be to impose a community sentence subject to conditions that ensure that the sentence is (a) an effective punishment and (b) one which offers action on the part of the Probation Service to tackle the offender's criminal behaviour and (c) when appropriate, will tackle the offender's underlying problems such as drug addiction" ( paragraph 44).
6. The Court also stated that it would be "pointless to try and identify all the factors that will indicate that a community disposal is not a practical option, but they may relate to the effect of the offence on the victim, the nature of the offence or the offenders record" ( paragraph 44). For example, the Court then added that "in the case of repeat offenders and aggravated offences, long sentences will still be necessary" ( paragraph 48). It also accepted the Panel's advice that "there are some first time burglaries which on the facts are so serious that a sentence of three years or more might be appropriate" ( paragraph 30).
Who are repeat offenders?
7. Some misapprehension may have been caused by our adoption of the Sentencing Advisory Panel's definition of a standard burglary which included a reference to a repeat offender. The Panel recognised that no definition is wholly appropriate. Although the Court adopted the Panel's definition of a standard burglary, it was made clear that sentencing courts should always take account of an offender's previous convictions. The Court was not limiting this to repeated offences of burglary as has been suggested. This is absolutely clear because the Court emphasised at the outset of the judgment that, in applying the guidance, it was necessary to have regard "to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary, but generally" ( paragraph 5). The Court also stated that "in the case of burglary … the offender's criminal record is … of more particular significance. In judging the record it is of course necessary to take into account the type of offence for which the offender has previously been convicted and the number of offences which were considered on any particular occasion" ( paragraph 29).
The limited effectiveness of short prison sentences and the advantages of community sentences
8. In the case of sentences of imprisonment for periods of up to 18 months, the protection provided to the public is limited because, as the judgment explains, only a quarter of the sentence may in fact be served. Prisoners serving sentences 12 months are entitled to be released after six. In addition, the six months is reduced by a further 90 days during which the prisoner will be on home curfew. The practical result is that today a sentence of 12 months imprisonment is likely to result in a prisoner returning to the community after three months. The Prison Service accepts that, in the case of short sentences, it is not in a position to tackle a prisoner's offending behaviour. In contrast, a community sentence can provide protection for three years during which a combination of tagging and curfew orders will keep the offender off the streets. These orders constitute a realistic and serious restriction on the offender's freedom. They may also tackle the offender's drug addiction, which is the cause of very many burglaries. In addition, this is supported by the potent sanction that, if the offender does not comply with the community sentence, he will be sentenced for the original offence and, as the judgment makes clear "this will be a strong indicator that a custodial sentence and possibly a substantial sentence is necessary" ( paragraph 47).
9. A community disposal in the case of less grave burglaries also has the advantage that it will assist the Prison Service to deal more effectively with even more serious offenders. It will relieve the overcrowding in prisons which, at the present time, is undermining the efforts of the Prison Service to do this.
The differing gravity of burglaries
10. Some media reports have suggested that the Court regarded all burglaries as being of the same gravity. The judgment, however, points out that "the seriousness of the offence can vary almost infinitely from case to case". It can range from an impulsive act and an object of little value (for example reaching through a window to steal a bottle of milk) to an offence deliberately directed at the elderly or one "accompanied by vandalism or any wanton injury to the victim". The Court also strongly supported and drew attention to Lord Bingham's comment that "whether a custodial sentence is required, and if so the length of such sentence, is heavily dependent on the aggravating and mitigating features" and "usually, to a lesser extent, the personal circumstances of the offender" ( paragraph 3).
The need for imprisonment
11. It is stressed that, while the Court intended that the number of offenders who would be sentenced to imprisonment should be reduced, this was only in the case of offences committed by non-persistent offenders and not where the number of offences indicated that the offender was a professional burglar ( paragraph 23). The Court accepted the advice of the Panel that the starting point for a second time domestic burglar committing an offence involving one of the high-level aggravating factors (such as force used or threatened against the victim) should be a custodial sentence of three years (see paragraphs 32(d) and 34).
The consistency of the Court's approach
12. The Court, in adopting this approach, was not, as has been suggested, acting inconsistently with its approach to street robbery offences, particularly those involving mobile telephones. As stated in the judgment "force used or threatened against the victim" is a high level aggravating factor" ( paragraph 21) If violence is used or threatened, a community sentence for burglary is wholly inappropriate and a sentence of imprisonment is indicated.
13. Some commentators have suggested that the Court was dramatically altering the approach to the sentencing of domestic burglars. In fact, it was doing no more than changing the emphasis. It is a well-established approach to sentencing that an offender should only be sentenced to imprisonment when this is necessary and then for no longer than necessary. The approach in the judgment, as the Court stated, "was intended to provide better protection for the public and to result in some reduction in the use of custody" ( paragraph 46).
These guidelines are not a charter for burglars
14. We hope we have said enough to make clear that the judgment is not
a charter to offenders to commit burglary as has also been suggested. Nor
is it a body blow to the efforts of the police to detect offenders who commit
burglary. On the contrary, the principles in the judgment will act as a deterrent
while at the same time contributing to achieving the reduction in reoffending
that is so important if the public is to be protected.
15. We make this Statement to correct the inaccurate reporting that has taken
place, because of the danger that, if allowed to stand, the inaccuracies
will unjustifiably undermine the confidence of the public in the criminal
justice system in a manner totally unwarranted by the judgment.