Practice and Procedure

ATTORNEY-GENERAL'S REFERENCE (No 104 of 2002) sub nom R v B (2003)

PUBLISHED March 24, 2003

A sentence of four years for aggravated burglary, where the victim was vulnerable and elderly, was unduly lenient, so it was quashed and a sentence of seven years substituted.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 7 August 2002 at Preston Crown Court, before HH Judge Proctor, the defendant ('B') was convicted of aggravated burglary and assault occasioning actual bodily harm. B was sentenced to a total of four years' detention in a young offender institution. On 31 August 2001 B broke into the home of a 76-year-old man, ('V'). V was asleep and awoke to see B through the glass living room door. B attacked V with a shovel he had found outside. V was struck on the head, fell down and was struck three more times. When he tried to get up he was beaten around the face and upper body. B stole a coat, keys and money. In a victim impact statement V stated that he had been at home recovering from an operation to remove an eye tumour. He had lived in the house for over 20 years but had felt unable to return after the attack, although he could not afford to move and was forced to return. B was arrested on 4 March 2002. A rubber glove, found at the scene, contained blood that matched his DNA. In interview B denied attacking V and said he had broken in, wearing the glove, but when he saw V he left. He said that a man, who was with him, took the glove and entered and it was he, not B, who attacked V. That man was arrested and released without charge. The Attorney-General referred the sentence as unduly lenient given the aggravating features that: (i) V was in his home, he was elderly and in poor health; (ii) a weapon was used; (iii) it was gratuitous violence; and (iv) V was left with physical and serious psychological injuries. The mitigating factors were the youth of B, as he was 17 at the time of the offences, and, whilst he had 12 previous convictions for 26 offences, none were for offences of violence or burglary. The Attorney-General submitted the sentence failed to reflect the gravity of the offence, the need to deter and public concern over these types of offences. Authorities showed a sentence in double figures was appropriate for offences of this nature. B accepted the offence was grave but submitted that the weapon was not taken to the scene and he had not specifically targeted an elderly person.HELD: (1) It was plain from the circumstances of the offence it did not arise as a result of an ordinary burglary. It was a burglary bristling with aggravating features. It was a sustained attack on a vulnerable old man, who had been gravely damaged. B's security and well-being was severely affected. (2) Despite the youth of B he had a long and poor record, albeit not for violence or burglary. After the present offence and before arrest he continued offending and had been convicted of another four offences, including possession of an offensive weapon. (3) The sentence passed was clearly unduly lenient. At first instance, for an offence of aggravated burglary, a sentence of at least nine years could be expected, even though B was young. Taking into account double jeopardy, the sentence of four years would be quashed and a sentence of seven years substituted.Order accordingly.