Neutral Citation Number: [2011] EWCA Crim 2754
Case No: 201103145 A2
IN THE HIGH COURT OF JUSTICE
COURT OF APPEALS CRIMINAL DIVISION
ON APPEAL FROM BOURNEMOUTH CROWN COURT
BEFORE MR RECORDER LASOK QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/11/2011

Before :

LORD JUSTICE ELIAS
MR JUSTICE MADDISON
MR JUSTICE BURNETT
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Between :

	DARREN JAMES LEVESCONTE	Applicant	
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	REGINA	Respondent	

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Robert Grey (instructed by David Hurley Associates) for the Appellant

Hearing dates: Thursday 29 September 2011
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Judgment

Mr Justice Maddison : 

1.	On 16th December 2010 in the Crown Court at Bournemouth, for offences of burglary in a dwelling and criminal damage, the appellant Darren Levesconte, who is now 22 years of age, received a total sentence of 9 months’ imprisonment suspended for 2 years, with supervision, unpaid work and programme requirements.  On 15th April 2011 at the same Court, he pleaded guilty to a further offence of burglary in a dwelling, committed during the operational period of the suspended sentence.  On 13th May 2011 he was sentenced by Mr Recorder Lasok Q.C. to 16 months’ imprisonment for the further burglary, and the suspended sentence was activated in full and consecutively, producing a total sentence of 25 months’ imprisonment with a direction that the 93 days he had already spent in custody should count towards his sentence.  
2.	A co-accused, Ryan Ashford, who is now 23, pleaded guilty to the second burglary and was sentenced to 12 months’ imprisonment suspended for 2 years, with similar requirements.  
3.	The appellant now appeals against his sentence by leave of the Single Judge. 
4.	The first burglary was committed on 26th May 2010.  The appellant entered a house in Bournemouth and stole about £70 in cash.  According to an Addendum Pre-Sentence Report to which we will return, the victims were an elderly couple who were known to keep cash in their home.  
5.	The second burglary took place at about 8:30pm on 7th February 2011, less than two months after the appellant had received the suspended sentence, at a flat in Bournemouth which formed part of sheltered accommodation provided for the elderly.  The flat was occupied by a 92 year old lady.  The appellant and Ashford somehow got through a secure communal door to the block in which the flat was situated, and entered the flat, the door of which was unlocked.  There they stole a jewellery box containing items including rings.  The occupier of the flat was in at the time, but did not realise that a burglary was taking place.  However, a neighbour, a lady in her seventies, observed what was happening and called the police.  The police found the appellant and Ashford in a toilet within the sheltered accommodation, not far from the flat which they had burgled.  The jewellery box was on the toilet floor, and a ring was found in one of the appellant’s pockets.  However, the victim of the burglary said in a later impact statement that she was still missing two rings which had been very precious to her.  She added that she now felt much more nervous and insecure than she had before the burglary.  Moreover, because of her immobility, she had been greatly inconvenienced by a rule introduced following the burglary that all the flats should be kept locked at all times.  She now had to make her way to the door whenever a visitor called.  
6.	  The appellant was arrested and interviewed, but made no comment.  He pleaded guilty on the following basis: 
“The burglary was unplanned and opportunistic.  He did not deliberately target elderly people, he did not know the premises were sheltered accommodation or that elderly people resided there.”
No Newton hearing was ordered and we will have to proceed on this basis.
 
7.	The appellant was no stranger to the criminal courts.  He had made 20 previous court appearances since 2004.  He had convictions for offences of dishonesty, violence, possessing an offensive weapon and a bladed article, criminal damage and threatening behaviour.  His court appearance on 16th December 2010 was his first for an offence of burglary, and the first at which he received a custodial sentence, albeit suspended on that occasion.  He had previously received fines and various community orders of which he had been repeatedly in breach.  
8.	The Recorder had a Pre-Sentence Report relating to the first burglary and an Addendum relating to the second.  We have read both.  The Pre-Sentence Report assessed the appellant as posing a high risk of re-offending.  That assessment was clearly accurate.  The appellant told the writer of the Addendum that in addition to himself and Ashford others had been involved in the second burglary, though he declined to name them.  The Addendum indicated that the appellant was aware that a custodial sentence would be imposed, and proposed no alternative.  
9.	Passing sentence, the learned Recorder said that “…the offence…bearing in mind the background of each of you, merits an 18-month custodial sentence, but…there are reasons why, in the case of each of you, some variation needs to be made to that figure.”  Referring to the appellant, the Recorder continued: “Because the offence for which I am sentencing you now was committed during a period of suspension for the previous offence of burglary, I think that your offending behaviour in relation to this incident was aggravated by that factor and I also, in that respect, place some importance on the fact that it was a repetition so recently for an offence for which you had previously been sentenced.  So I think, putting that additional factor into account justifies increasing the sentence for you to 2 years.”  Later, the Recorder added that the main difference between the appellant and Ashford was that the appellant “…committed this offence while you had hanging over you a suspended sentence for an offence of burglary, whereas you, Mr Ashford, although you committed the same offence, you were not in that situation…”.  The Recorder indicated that he would reduce the sentence on the appellant from 24 to 16 months as a result of the appellant’s guilty plea.
10.	 On appeal, it is conceded that the Recorder was entitled to activate the suspended sentence for the first burglary in full and consecutively, and no criticism is made of his starting point of 18 months in relation to the second burglary.  It is submitted, however, that he was wrong then to increase the starting point for the second burglary of 18 months to 2 years.  It is said that neither of the two reasons given by the Recorder for doing so was valid.  
11.	The first given reason was that this was a second burglary committed not long after the first.  The appellant accepts that these were aggravating factors that the Recorder was entitled to take into account, but contends that the Recorder had already done so in concluding that the second burglary merited an 18 month sentence “…bearing in mind the background of each of you”.  Thus there was an element of double-counting.  
12.	The second given reason was that the second burglary was committed during the operational period of the suspended sentence imposed for the first.  However, it is submitted, it was wrong both to activate the suspended sentence in full and consecutively arising out of the commission of the second burglary during its operational period; and then to increase the sentence for the second burglary because it was committed during that operational period.  This too, it is said, involved an element of double-counting.  
13.	We disagree with the argument directed to the Recorder’s first given reason for increasing his 18 months’ starting point.  In our view when the Recorder initially stated that he was fixing the sentence “bearing in mind the background of each of you”, he had in mind the poor antecedents, common to both defendants.  The later reference to the fact that for this appellant it was a repetition of an offence so recently committed was a specific factor applicable only to the appellant.  On a fair reading of the sentencing remarks, we do not think that the judge had intended it to be encompassed in the earlier remarks and accordingly there was no element of double counting here.  Having said that, on its own this factor would be likely to have little impact on the sentence, particularly for someone with such heavy antecedents as this appellant had. 
14.	As to the second argument, we are not aware of any case law directly on the point.  Section 143 of the Criminal Justice Act 2003, which deals with determining the seriousness of an offence, requires the court by sub-section (2) to treat each previous conviction as an aggravating factor if it can reasonably so be treated, and by sub-section (3) to treat the commission of an offence on bail as an aggravating factor; but it is silent as to whether or not the commission of an offence during the operational period of a suspended sentence is to be considered as an aggravating factor.  The aggravating factors listed in paragraph 1.22 of the Sentencing Guidelines Council’s Guideline on “Overarching Principles: Seriousness” include not only previous convictions (mirroring section 143(2)) but also “failure to respond to previous sentences” and “offence committed whilst on licence”.  The list does not include the commission of an offence whilst subject to a suspended sentence or, indeed, a community sentence or conditional discharge; but neither does the list purport to be comprehensive, as paragraph 1.21 makes clear.  
15.	In our view however, it was not appropriate for the Recorder to treat the fact that the offence was committed during the operational period of the suspended sentence as a factor justifying the increase of the second sentence, not at least in circumstances where the suspended sentence was activated in full.  The reason is that the defendant had already been dealt with for that very fact by the implementation of the full original sentence.  To take it into account again when the Recorder was fixing the sentence for the second offence was to increase the sentence referable to that fact beyond the maximum for which the defendant had been at risk.  Precisely the same factor was carrying weight with respect to two separate offences.  We recognise that the same argument may not run where the suspended sentence is not fully implemented; that is an argument for another day.  Suffice it to say that in this case we are satisfied that this factor was not a legitimate consideration to take into account when sentencing for the second offence.  
16.	It follows that in our view the sentence for the second offence should not have been increased as it was.  It seems to us that in the circumstances the starting point before having regard to the plea should be 18 months and not 24 months.  Arguably this is unduly favourable to the appellant since it is not increasing the sentence to take into account the fact that the second offence was committed so soon after the first.  However, in our view that was always a makeweight consideration, reinforcing the Recorder’s conclusion that he should increase the sentence because the offence had been committed during the suspended period.  As we have said, we doubt whether it would have counted for much on its own and we shall not increase the sentence on that account.   
17.	In our view, given the serious nature of the second burglary, the appellant could not have complained had the Recorder’s starting point been 24 rather than 18 months.  However, as the starting point taken was 18 months, and since it was increased for reasons which on analysis we regard as invalid, we take the view that the justice of the case requires us to substitute for the sentence of 16 months passed for the second burglary the sentence of 12 months, which the appellant would have received after a discount for his plea of guilty had the starting point remained at 18 months.  The effect is to reduce the overall sentence from 25 months to 21 months.
18.	To that extent, this appeal against sentence is allowed.