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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bailey, R. v [2025] EWCA Crim 201 (24 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/201.html Cite as: [2025] EWCA Crim 201

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE
MR RECORDER LUMLEY KC
10U40025124, 10U40312024, 10U60215024, 10U50263724, 10U40420324 and 10U00200324

		Royal Courts of Justice Strand London WC2A 2LL
		24 January 2025

MR JUSTICE LAVENDER:

1. The appellant appeals, with leave granted by the single judge, against the total sentence of 141 weeks' imprisonment imposed on him on 18 September 2024 in the Crown Court at Newcastle-upon-Tyne for 14 offences, to which he had pleaded guilty on various dates in the Newcastle Magistrates' Court. Those offences and the sentences imposed were as follows. For ease of reference we have numbered the offences in the order in which they were committed:

(1) Offence 1: theft, 9 weeks' imprisonment. On 25 November 2023 the appellant stole a bicycle belonging to Steven Chambers from outside the Royal Victoria Infirmary in Newcastle.

(2) Offence 2: burglary, 24 weeks' imprisonment. On 2 June 2024 the appellant entered the Centre of Life building in Newcastle by forcing open a side door.

(3) Offence 3: burglary, 8 weeks' imprisonment. On the night of 4-5 June 2024 the appellant entered the car park of a block of flats and stole a bicycle worth £750 belonging to Thomas Smith.

(4) Offences 4 to 6: theft, 4 weeks' imprisonment each. On 7, 10 and 14 June 2024 the appellant stole from Morrisons Daily in Gateshead. The items stolen on 7 June were worth £15, no value was given for those stolen on 10 June and those stolen on 14 June were worth £50.

(5) Offence 7: theft, 8 weeks' imprisonment. On 16 June 2024 the appellant entered the car park of a block of flats and stole a bicycle worth £500 belonging to Rhys Bowden.

(6) Offence 8: burglary, 16 weeks' imprisonment. On 20 June 2024 the appellant stole a bicycle worth £400 belonging to Joseph Davis.

(7) Offences 9 and 10: theft, 8 weeks' imprisonment. On 27 June 2024 the appellant stole a bicycle worth £320 belonging to Jason Haxby and a bicycle worth £1600 belonging to Thomas Jones. He was a doctor working at the Royal Victoria Infirmary and his bicycle was stolen from outside the hospital.

(8) Offence 11: failing to surrender to bail, no separate penalty. On 18 July 2024 the appellant, who was on bail in connection with offence 1, failed to surrender to bail at the Newcastle Magistrates' Court.

(9) Offences 12 to 14: burglary, 52 weeks' imprisonment; going equipped for burglary, no separate penalty; and obstructing a police constable, 4 weeks' imprisonment. On 4 July 2024 the appellant entered a shop, CK Cycles in North Shields. He smashed a window and damaged the door and doorframe. The estimated repair cost was £500. The appellant had with him a screwdriver and a pair of bolt cutters. He gave a false name to the police officer who arrested him.

2. The sentences imposed for offences 1 to 4, 7 to 10, 12 and 14 were consecutive, leading to a total of 141 weeks' imprisonment, which is about 2 years and 7½ months. With the exception of the sentence for offence 1, each of these sentences of imprisonment was reduced by one-third by reason of the appellant's guilty plea. The sentence for offence 1 was reduced by one-tenth. The total sentence was therefore roughly equivalent to 210 weeks or about 4 years and 2 months before the reduction for the appellant's guilty pleas.
3. The appellant was 31 when he committed these offences. He had been convicted of 59 previous offences, committed between 2009 and 2022, including nine thefts or attempted thefts of a bicycle, four offences of shoplifting, four burglaries or attempted burglaries and three offences of going equipped for burglary. The appellant's criminal record was a significant aggravating factor.
4. The pre-sentence report indicated that he was homeless and that he suffered from ADHD, anxiety and depression. He had been a drug user throughout his adult life and these offences were committed to fund his drug-taking habit. Offence 1 was committed only a month after the appellant had been released from prison, at a time when he was still subject to post-sentence supervision. The Probation Service had found it impossible to conduct any meaningful work with him. Victim personal statements from five of the bicycle owners spelt out how their loss was much more than just financial.
5. In passing sentence, the recorder observed that the appellant was arrested for offence 1 on 15 January 2024 and that it was an aggravating factor for all of the other offences that they were committed after he had been arrested for offence 1. Indeed, all of those offences were committed while he was on bail.
6. The recorder also said as follows:

"Looked at in isolation, each offence may be thought to be trivial but, with your record, the extent and persistence of your offending means that the court must step substantially outside the guidelines and sentence you in a way which adequately reflects the harm you have caused and your culpability but there is only so much prison time that can be allocated to this type of offending."

7. As we have said, the recorder imposed ten consecutive sentences, although he did not expressly address the question of how he had applied the totality principle.
8. There are three grounds of appeal. One concerns the 52-week sentence imposed for offence 12, which it is said was wrongly categorised. Another ground concerns the 4-week sentence imposed for offence 14. No other individual sentences are the subject of complaint, although the appellant submits that the sentences imposed were generally above the starting point in the relevant sentencing guidelines before the reduction for the appellant's guilty plea.
9. The principal ground of appeal is that the overall sentence did not adequately reflect the totality principle.
10. Offence 12 was a non-dwelling burglary. The Crown submitted that it fell within category B2 in the offence-specific sentencing guideline, with a starting point of 6 months' imprisonment and a range of up to 1 year's imprisonment. This was on the basis that it was medium culpability, because the appellant was equipped for burglary, and category 2 harm, because there was moderate damage to property.
11. It is submitted on behalf of the appellant that that offence did not fall into any higher category than B2 and that the sentence imposed, which was equivalent to 18 months' imprisonment before the reduction for the appellant's guilty plea, was 6 months above the top of the range for a category B2 offence. The recorder did not say that he had placed this offence in a higher category than category B2. He did, however, say in the passage which we have quoted, that he would step outside the guidelines. The question therefore is whether he was entitled to do so. That question, in our judgment, is best addressed by considering the sentence for offence 12 in the context of the total sentence imposed for all 14 offences.
12. In the case of offence 14, obstructing a constable, the relevant sentencing guideline indicates that a non-custodial sentence would be appropriate for this offence if considered in isolation. No objection is taken to the imposition of a short custodial sentence for offence 14 in the circumstances of the present case, but the maximum sentence for this offence was 1 month's imprisonment, whereas the sentence imposed of 4 weeks' imprisonment was equivalent to 6 weeks before the reduction for the appellant's guilty plea.
13. The totality principle requires that the overall sentence should reflect all of the offending behaviour, with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender, and be just and proportionate. The recorder had to sentence the appellant for 14 offences arising out of 11 separate instances of burglary or theft. The appellant had a long criminal history, including the theft or attempted theft of nine bicycles. The recorder had to sentence him for stealing six more bicycles and attempting to steal even more from a cycle shop. Thirteen of these offences were committed within a 2-month period at a time when the appellant was on bail.
14. In those circumstances, we consider that the total sentence imposed by the recorder was justified and that he was entitled to sentence outside the range imposed by the relevant sentencing guidelines. However, in arriving at that total sentence the recorder was in error as to his sentencing powers for offence 14. We can correct that error and we consider that it is appropriate to do so. Accordingly, we quash the sentences of 8 weeks' and 4 weeks' imprisonment imposed for offences 3 and 14 and substitute sentences of 10 weeks' and 2 weeks' imprisonment. Since we have added 2 weeks to one sentence and deducted 2 weeks from another sentence, the total sentence remains the same. Save for that correction, the appeal is dismissed.
15. For the avoidance of doubt, what we have called "offence 3" is offence 1 in the case with the reference number 10U00200324 and what we call "offence 14" is offence 3 in the case with the reference number 10U50263724.