Practice and Procedure


PUBLISHED December 3, 2003

A total sentence of twelve months' imprisonment for domestic burglary and three months to run consecutively for failing to surrender bail was not manifestly excessive.Application for leave to appeal against a sentence of twelve months' imprisonment for burglary and a sentence of three months to run consecutively, for failing to surrender to bail under the Bail Act 1976. The appellant ('P') had entered the flat of the victim ('V'), through a window early in the morning of 2 August 2002. V challenged P, who stated that he was looking for a man named "Carlos". V told P to leave, which he did, but V discovered later that ?5 in cash, a tennis racket, a mobile phone and a camera had been stolen. P was subsequently arrested and at interview admitted conversing with V, but not to having entered the premises. During trial, P failed to turn up on the last day. A warrant was issued for P's arrest. The trial judge stated that although the value of goods was not great and although it was P's first offence for domestic burglary, P did have a past history of dishonesty, drugs offences and a previous bail offence. A pre-sentence report revealed that P was unsuited to a community punishment order and so passed a custodial sentence. On appeal P contended that the total sentence was manifestly excessive. Cases of R v Brewster (1998) 1 CAR 220 and R v McInerney (2003) 1 CAR 627 demonstrated that the starting point for first-time domestic burglary should, in the absence of aggravating features, be a community sentence. The trial judge had paid insufficient notice to the aggravating features.HELD: (1) Following a contested trial 12 months' imprisonment could not be considered manifestly excessive. (2) In respect of the Bail offence, no defence could be offered for P's failure to appear on the final day of trial. Accordingly, the trial judge was entitled to impose the maximum sentence of three months' imprisonment.Application dismissed.

[2003] EWCA Crim 3459