Case No: 2008/5057/A5 
Neutral Citation Number: [2009] EWCA Crim 119
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 29 January 2009

B e f o r e:

LORD JUSTICE HUGHES 
MR JUSTICE WILKIE 
 
THE RECORDER OF CROYDON
(His Honour Judge Warwick McKinnon)  
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

MICHAEL MYERS
 
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Miss J Bickerstaff appeared on behalf of the Applicant 
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J U D G M E N T 

1.	MR JUSTICE WILKIE:  On 20th August last at the Crown Court at St. Albans the applicant Michael Myers, aged 28, was convicted of two domestic burglaries and was sentenced on each to eight years' imprisonment, those sentences to run concurrently, with the benefit of an order under section 240 of the Criminal Justice Act 2003 that 208 days on remand count towards sentence.  He renews his application for leave to appeal against sentence after refusal by the single judge.  Miss Bickerstaff has addressed us whilst appearing pro bono.  We grant leave and we make a representation order to cover her attendance today.
2.	The brief facts of the matter were that at 5 pm on 19th January 2008 the applicant and an accomplice attended the home of an 82‑year‑old man in Hertford.  They stated that a neighbour had a water leak and said they needed to enter his home to turn off the water.  Once inside the applicant went to the kitchen; the other went to the bedroom and to the lounge.  The occupant became suspicious and asked for some identification.  He managed to get both the appellant and his accomplice to leave his property.  In fact there was no water leak and the occupant contacted the police.  
3.	Some half an hour later the appellant and the same other male went to the home of a 94‑year‑old woman in Stevenage, a flat in a block of sheltered accommodation.  The two used the same ruse as before and said they needed to look in the kitchen as they were fixing a leak in a neighbour's flat.  One of them engaged her in conversation.  The other went around the property.  After they had left she discovered that £700 had been taken from her bedroom, money she intended to give to her daughter to pay for her carer.  
4.	The appellant was identified from CCTV and some five days later was arrested.  When first interviewed he provided a prepared statement claiming to have been elsewhere at the time of the offence and made no comment to questions asked.  The same day he was picked out in an identification parade and re‑interviewed.  He denied the offences, he denied being the person shown on the CCTV and said that two who had picked him out at an identification procedure had been mistaken.  That seems to have been a course which he persisted in at the trial.  The male occupant of the first premises gave evidence but the female occupant of the second premises was unable to give evidence because of her failing health and her evidence was read.
5.	The appellant has eleven previous convictions comprising 24 offences of which 12 were offences of burglary, eight of which were burglary of a dwelling, four of them of a distraction burglary type.  He started committing domestic burglaries when he was 14.  The first distraction burglary was committed in 1995 when he was 15.  In 1996 there was a further instance for which, together with another offence of dwelling‑house burglary, he received a sentence after appeal of 40 months' imprisonment.  In 1999 on three separate occasions he appeared before the courts charged with and convicted of dwelling‑house burglaries.  Two of them were distraction burglaries.  In relation to those he received a two year sentence consecutive to a previous two years' detention for non dwelling‑house burglaries and 16 months' detention to run concurrently.  Finally, in April 2003 at Luton Crown Court for yet a further dwelling‑house burglary, on this occasion not a distraction burglary, he was sentenced to three years' imprisonment.
6.	The learned judge in sentencing him referred to the fact that these burglaries were targeted at elderly victims by him and his accomplice.  After the first unsuccessful burglary they went on to try their luck at a second elderly woman's accommodation where they stole £700.  The judge said of these offences, in our judgment absolutely correctly, that they are mean, they involve praying on the elderly and vulnerable, that the Court of Appeal has said in the past that these sort of offences cast a shadow over the lives of the elderly who then dread the unexpected knock.  These were individuals burgled in their homes at the time of their lives when they need and are entitled to expect to be secure in their own homes.  The judge referred to the fact that he had contested the case and whilst that did not increase the sentence it meant that he could have no credit for a plea of guilty.  He had forced the elderly gentleman to give evidence and to relive his unpleasant experience and would have done the same for the 92‑year‑old but for the fact that her ill‑health precluded her from giving evidence in court.  The judge referred to the fact that he was 28 years of age and had committed that type of offence before, namely a distraction burglary where the elderly were targeted.  He had received prison sentences in the past for those offences but that did not deter him from committing those offences on the current occasion.  In the light of all of these matters, the judge imposed a sentence of eight years' imprisonment concurrently on each count.
7.	Effectively the sole ground of appeal is that, notwithstanding all the disadvantageous things that could be said of this appellant, the sentence of eight years was manifestly excessive, particularly in view of the fact that there was no evidence that any violence had been used or any threat of violence.  Initially the grounds sought support for the proposition that the sentence was manifestly excessive from the case of McInerney and others [2002] EWCA Crim. 3003, [2003] 2 Cr.App.R (S) 39.  Miss Bickerstaff has drawn our attention, however, to a case decided in this court on 16th January 2009, the case of Saw and Others [2009] EWCA Crim. 1, a case designed, in effect, to replace McInerney as the authoritative guidance in respect of dwelling‑house burglaries.  She has taken us in some detail through the paragraphs of the judgment of the Lord Chief Justice in that case.  She acknowledges that there are a number of aggravating features in this case and that it falls within the type of case described in paragraph 32 of the judgment as being a case of seriously raised culpability and of serious impact where the starting point should be a custodial sentence probably in the general range of two years and upwards.  For a single offence the range would ordinarily be 18 months to four years.  Sentences beyond the range may be appropriate where the culpability and/or impact is at an extreme level.  Longer sentences may be indicated, for example, by a record of relevant offending or where the hallmarks of professional crime are evident.  In this case these were two offences committed on the same occasion by two men, obviously organised and determined to commit this sort of burglary, deliberately targeting the elderly who were particularly vulnerable and who were at home.  
8.	It is to be observed that one of the cases which had been brought together for the purpose of giving guidance to courts was the case of McPhee.  That was a case involving a man of similar age, not with quite the same bad record as this appellant, who was acting on his own but who was a persistent distraction burglar.  He was a person who had pleaded guilty not at the first available opportunity and had had a five year sentence of imprisonment imposed.  At paragraph 61 of the judgment, the court said this:
"If this sentence had assumed a full discount for a guilty plea, it would have been of a kind normally appropriate to burglary where there is not only confrontation but also the threat or use of some direct force against the householder. However a full discount for plea was not appropriate here."  
The sentence of five years was upheld.  Had the full credit for a guilty plea been available in that case it would have denoted a sentence of seven‑and‑a‑half years after trial.  As the Court of Appeal said in that case, that level of sentence for a domestic burglar would normally be limited to those cases where there was not only confrontation but the threat or use of some direct force against the householder.  That particular element was absent in each of these two distraction burglaries.  
9.	On that basis, and on that basis alone, in our judgment the learned sentencing judge, not having the advantage of the case of Saw and the guidance which it gives, in imposing sentences of eight years concurrent for each of these distraction burglaries, did impose a sentence which, notwithstanding the aggravating features of the case, was manifestly excessive.  In our judgment and consistent with the approach identified in the case of Saw, the appropriate sentence after a trial for these burglaries would have been one of six‑and‑a‑half years, those two sentences to run concurrently.  Accordingly this appeal is successful to this extent.  We quash the sentences of eight years and we substitute for them sentences of six‑and‑a‑half years to run concurrently.  The direction under section 240 will remain unchanged.