No: 200704908 A6 
Neutral Citation Number: [2008] EWCA Crim 536
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 6th March 2008

B e f o r e:

LORD JUSTICE LATHAM 
(Vice President of the Court of Appeal Criminal Division)
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MR JUSTICE CRANSTON 
 
SIR RICHARD CURTIS 
 
R E G I N A 

v 

JOHN ANTHONY KIELY (AKA MCDONNA)
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Mr K H Hind appeared on behalf of the Applicant
Miss C Ellis appeared on behalf of the Crown
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J U D G M E N T 

1.	SIR RICHARD CURTIS:  This applicant, John Anthony Kiely, is 42 years of age, date of birth 5th August 1965.  He has many previous convictions, certainly 30 in the period 1979 to 2008.  His record includes 69 offences, of which a very substantial proportion are burglaries and a significant number of what are known as distraction burglaries amongst that figure.  This matter has been referred to the full court by the Registrar.
2.	The background is that the applicant pleaded guilty at Preston Crown Court on 29th June 2007 and was sentenced on 20th August 2007 by His Honour Judge Stuart Baker to five years' imprisonment concurrent on each of the two domestic burglaries.  The judge expressly stated that that was to be "consecutive to his existing sentence".  The applicant asked for 18 further burglaries or attempts at burglary to be taken into account.  The learned judge said all the burglaries were, in his opinion, distraction burglaries (see page 2 letter D of the sentencing reasons), and we take full note of that.
3.	By reason of the accused's record, the sentence had to be a mandatory one of three years or more under section 111 of the Powers of Criminal Courts (Sentencing) Act 2007. 
4.	The sentencing exercise did not go well, to put it mildly.  The plea and case management hearing took place after 25th June 2007.  There ought to therefore have been in court the Attorney General's Guidance to Prosecutors, which enjoins the Crown to prepare a document in order to help the judge with the complications of the modern sentencing practice.  For reasons that escape us, this was not done.  Miss Ellis has done her best to help us, but we do not know who is responsible for the failure to have the appropriate document and guidance for the sentencing judge.
5.	Secondly, the order that the appellant should serve a consecutive sentence to the remainder of the sentence for the earlier offences was unlawful.  Section 265 of the Criminal Justice Act 2003 provides at subsection (1):
"A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter."
6.	The third (original) criticism was that allowance under section 240 of the Act for eight days spent remanded in custody falls by the wayside since, as the court has observed, it is clear from the prison copy of the order for imprisonment dated 20th August 2007 that such a credit was given, and we shall make the same order here for the avoidance of any doubt.
7.	We turn to deal now with the relevant two burglaries that the judge had to deal with. 
8.	The first took place on 29th January 2007 in Kirkham, Lancashire, and the second on 16th February 2007 in Preesall Road, Preston.  In each case two men called at the home of vulnerable persons with a cock and bull story and stole £70 cash in the first instance and £35 cash from the householder in the second case.  The first victim was 91 years of age at the time.  He became depressed after the burglary and died shortly afterwards.  The second householder was described as elderly and he was a disabled person.  The judge, quite rightly, condemned the applicant for committing such cowardly and mean offences, and he was quite right to take that into account in the sentencing process.  He noted that this applicant was at a high risk of re‑offending.  Of course at that stage he was addicted to Class A drugs and that was the motivation for his offending.
9.	We have no prison report, but we are told by Mr Hind that the applicant is doing well and attending CARAT courses and the like and is clear of his addiction at the moment due to his incarceration.
10.	The applicant has served 199 days of the sentence passed upon him by Judge Baker.  
11.	As we have said, the sentence was unlawful since it breached section 265 and no‑one seems to have drawn the judge's attention to that section of the Act, so we have to consider re‑sentencing under the terms of section 106 of the Powers of Criminal Courts (Sentencing) Act.  
12.	We are impressed with the submissions of Mr Hind that at last there is some evidence that this applicant has decided that imprisonment is not the way to spend the rest of his life, which assuredly will happen, particularly with his record and particularly if he persists, as he has done, in committing these very unpleasant and mean offences.
13.	In the light of the submissions, and particularly of two factors, one that is personal to the applicant is that his daughter is very ill and has a limited life expectancy and he wishes to be able to care for her and assist his wife to do so, upon whom all the burden appears to have fallen, and, secondly, that he made a clear breast to the police, as far as can be detected, of all the offences that he had committed, some of which were unknown to the police, or if they were known they did not know that the applicant was implicated, we decline to make any order under section 116 of the Powers of Criminal Courts (Sentencing) Act.  We affirm the five year sentence passed by the judge and, as we made clear earlier, eight days will be credited under section 240 as the judge ordered.  
14.	That, in our judgment, means that this court has moved significantly to reward this applicant for his efforts so far, and if of course he does not respond to that merciful decision he will of course no doubt go back to the criminal activities and pay a much heavier price in the future.  
15.	We give leave of course for the application, and Mr Hind will doubtless agree that we can treat this as the substantive hearing of the appeal.
16.	MR HIND:  My Lord, thank you.