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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 >> Smith, R. v [2025] EWCA Crim 221 (20 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/221.html Cite as: [2025] EWCA Crim 221

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
(HIS HONOUR JUDGE LUCAS KC) [01CW1362224]

		Royal Courts of Justice The Strand London WC2A 2LL

LORD JUSTICE HOLROYDE: I shall ask Mr Justice Swift to give the judgment of the court.

MR JUSTICE SWIFT:

1. This is an appeal by Adam Smith against the sentence passed on him by His Honour Judge Lucas KC in the Crown Court at Southwark on 16 October 2024.
2. On 12 June 2024, at Croydon Magistrates' Court, the appellant had pleaded guilty to four offences of non-domestic burglary, contrary to section 9(1)(b) of the Theft Act 1968. The magistrates committed him to the Crown Court for sentence. The four burglaries took place in April and May 2024. Each took place at retail premises in London at night. In each case the appellant forced entry, causing minor damage to the premises. On 2 April 2024 he took £500 from the Hiya Boba Café in Bute Street, SW7. On 26 April 2024, he broke into the Fireaway restaurant and stole £70, and on the same night stole £100 in cash and an iPad from the ULI restaurant in Ladbroke Road. Two days later he returned to the ULI restaurant and stole another iPad. On 22 May 2024, he broke into Knoops Chocolate Café and took and iPad and a laptop computer.
3. The appellant is a drug addict. He has a very long history of convictions for theft and similar offences – some 41 convictions for 79 offences committed over the past 25 years. In the five years prior to being sentenced in the Crown Court at Southwark for the offences in issue in this appeal, the appellant had been convicted of ten other offences of burglary.
4. In respect of these offences the judge passed concurrent terms of two years' imprisonment for each of the offences of burglary.
5. The hearing on 16 October 2024 was the fourth occasion that this matter had been listed for sentence. The hearing was originally due to take place on 30 August 2024, but was adjourned because the drug rehabilitation requirement report had not by that stage been prepared. On 23 September 2024, the hearing was adjourned again. On this occasion the court had a note from the prison saying that the appellant had refused to attend court. The hearing was again adjourned on 16 October when problems with a video link meant that the appellant had insufficient time to confer with counsel. On that occasion it appears that he was disruptive. The reason for that is not recorded. On 18 October 2024, the appellant was not in court. The prison provided a note to the effect that he had refused to attend court, saying that he was ill.
6. The grounds of appeal, as originally pleaded, were set out at length. However, it seems to us that two matters arise. The first is whether the sentences passed were consistent with the Sentencing Council guideline for offences of non-domestic burglary. The second is whether the judge was correct to decide not to suspend the sentences of imprisonment that he passed.
7. In his sentencing remarks, the judge noted the appellant's lengthy criminal record and observed that his life was something of a vicious circle, with the appellant stealing to fund his drug addictions. The judge then continued as follows:

"In order for the cycle of offending to be broken, the court needs proof positive of your motivation and commitment to disengage from drugs and co-operate with the Probation and other agencies, including drug rehabilitation requirement.

As against this, I note you have numerous convictions for breaching court orders. It is clear to me that your current spate of offending passes the custody threshold. It is also clear to me that your offending is of such a scale that the sentencing guidelines are of little assistance in your case. Meaning, I must sentence you more severely than I would a person facing the same offences who is very significantly less convicted than you.

It had been my intention to consider a short, deferred sentence to give you a chance to demonstrate your motivation to comply with the agencies who are there to assist you. However, I note that you were extremely disruptive over the CVP link on 16 October. You have simply refused to attend today, claiming to be unwell. I have seen no evidence that you are, in fact, unwell.

In short, you have voted with your feet. You have showed me you have not the slightest desire or motivation to co-operate.

I will therefore sentence you so as to protect the public from further offending by you.

In my judgment, the overall sentence for this spate of non-domestic burglaries is three years' imprisonment."

Thus, even though the sentences have been described as four concurrent sentences, the judge effectively passed a single sentence covering all four offences. The judge then allowed one third credit for the appellant's guilty pleas, resulting in the sentences of two years' imprisonment.

8. When the case was opened before the judge, there was some discussion of the application of the Sentencing Council Guideline. The judge stated that the burglaries fell into the category B medium culpability bracket – a matter that was not disputed before him – and into the category 2 harm bracket on basis that there had been moderate damage and disturbance and the theft had caused moderate loss to the victims. Miss Reinach, who appeared for the appellant below as she does before us, submitted to the judge that the burglaries were in category 3 for harm, on the basis that there had been limited damage and disturbance and that the property taken had been of a low value.
9. The starting point for category 2B is six months' imprisonment; the range is between a medium level community order and one year's imprisonment. Both the starting point and the range assume the commission of a single offence. The starting point for category 3B is a medium level community order; the category range extends from a low-level community order to a high-level community order.
10. Miss Reinach's submissions today have focused on the matters that we considered to be at the centre of this appeal: firstly, the application of the Guideline; and secondly, whether the sentence imposed, ought to have been suspended. She submits that the offending falls within category 2 for harm (that is to say, the category identified and applied by the judge); but in terms of culpability, she submits that the offences are category C. Miss Reinach contends that the burglaries were impulsive offences. We disagree with that characterisation. We accept the conclusion reached by the judge that these were category B medium culpability offences. They were not impulsive. They were certainly opportunistic and were part of a persistent pattern of offending used by the appellant to fund his drug habit.
11. We turn to our consideration of the sentences passed. We have already noted that the judge effectively passed one sentence to cover all of the burglaries. That was a pragmatic approach, and we agree with it. As we have already also said, the judge approached the matter on the basis that the offending fell within category 2B of the Sentencing Council Guideline. Again, for the reasons we have already given, we consider that that was the correct approach to take in relation to the starting point for the sentencing exercise. From the passage we have set out above from the sentencing remarks, it is clear that the judge considered that the sentence necessary to address the four offences and to take account of the appellant's extensive previous convictions, would be outside the category 2B range. We see the force of that conclusion. A sentence outside the category range was appropriate. This was persistent offending against a background of extensive previous convictions. However, we do not agree with the judge to the extent that the appropriate sentence, before credit for the guilty pleas, should be as high as three years' imprisonment. That sentence was outside the range for category 2B, but was also outside the range for category 1B.
12. Having considered such information about the offences as is available, and having also considered the appellant's previous convictions, we consider that the appropriate sentence before credit for the guilty pleas should be two years' imprisonment – that is to say, a sentence which is at the top of the range for category 1B, as set out in the Guideline.
13. The second matter in the appeal concerns whether the sentence should be suspended. It is apparent from the judge's reasoning that he had the relevant part of the Guideline on the imposition of community and custodial sentences well in mind. The point made in the grounds of appeal, and in the submissions this morning, is that the decision not to suspend the sentence was informed by the appellant's behaviour on the video link on 16 October 2024, and by his failure to attend the hearing on 18 October. As to the latter, it is submitted in writing that there was insufficient information available to the judge to conclude that the appellant's failure to attend was wilful, rather than the result of genuine illness.
14. We accept that the decision not to suspend the sentences was in consequence of the events of 16 and 18 October. These matters satisfied the judge that the appellant was not motivated to move away from his drug addiction and would not co-operate with the Probation Service were he to be given a suspended sentence and be required to undertake various courses in the community. We are not prepared to second guess the judge's conclusion on this matter. As to why the appellant did not attend the hearing on 18 October, there is no more information before us than was available to the judge. The judge was entitled to draw the inference that he did, and we are not in a position to say otherwise. We also note that, quite apart from the events on 16 and 18 October 2024, there was evidence, as the judge noted, that on previous occasions in 2022 and 2019 the appellant had not complied with conditions in court orders aimed at helping him address his circumstances. Further, the appellant was being sentenced for four offences and had significant previous convictions, including, as we have already mentioned, ten for burglaries committed in the previous five years. All of this pointed against a decision to suspend the sentences. The second ground of appeal therefore fails.
15. For the reasons given already, the appeal succeeds on the first ground to the extent that we quash the four concurrent sentences of two years' imprisonment and substitute for them four concurrent sentences each of 16 months' imprisonment.