McCloskey, R v

Neutral Citation Number: [2016] EWCA Crim 608 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 201505595/A2 Royal Courts of Justice Strand London, WC2A 2LL Friday, 26th February 2016 B e f o r e: LORD JUSTICE McCOMBE MR JUSTICE IRWIN HER HONOUR JUDGE MUNRO QC (Sitting as a judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A v RYAN MICHAEL PATRICK MCCLOSKEY - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Miss A Jackson appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE McCOMBE: On 22nd October 2015 in the Crown Court at Warwick before His Honour Judge Parker, the appellant pleaded guilty to an offence of burglary of commercial premises and on 20th November 2015 he was sentenced by Mr Recorder Hotten QC to 16 months' imprisonment for that offence. Having committed the offence during the 12 month operational period of a suspended sentence of 18 weeks' imprisonment imposed on 3rd July 2015 by the Coventry Justices the suspended sentence was activated in full, giving rise to a total sentence of 20 months' imprisonment. He now appeals against sentence by leave of the single judge. There were two co-accused, Billy John Swain, aged 24 and Andrew Keith Williamson, age 25, who also pleaded guilty to the same offence on the same day and were each sentenced by the learned Recorder to 16 months, like the present appellant. The facts of the case were these. On 18th August 2015 in the early hours of the morning a man in charge of CCTV at a base in Leeds was observing the screens portraying the scene at a construction site in Coventry when an alarm was triggered by one of the CCTV cameras. He could see on his screen three men wearing hooded tops looking through the window of the construction site cabin. He contacted the police. They attended with a dog handler soon thereafter and eventually spotted the appellant and his co-accused on the site who started to run away while the officers gave chase. It took some time to track the offenders down and they were eventually seen on the top of an embankment on the far side of a canal and were directed to come down from the embankment which they eventually did. They had obviously been concealing themselves in the canal because on arrest they were soaking wet. The police attended the construction yard following the capture of the appellant and his confederates. An examination of the site revealed that the port-a-cabin on site had been broken into by a side window. Building items, laser measuring equipment, laptops and tools were piled outside the cabin next to a wheelbarrow clearly ready for collection. A suitcase inside one of the cabins had been emptied and property including a one item of machinery valued at £2,000, survey equipment and further tools had been placed inside. The value of the goods stacked ready for collection was agreed at the sentencing hearing to be in the value of about £12,000. The van when searched was found to contain a crowbar and bolt cutters. The site manager estimated that had the items been taken, in addition to the loss of property, the delay in construction would have been at something in the order of a week at a cost to the company of £7,000 per day. In fact nothing beyond a cigarette lighter was lost. The appellant is 32 years old. He had 15 previous convictions for 28 offences including four offences of battery, three breaches of conditional discharges, two affrays and two offences of possession of cannabis with intent to supply, assault occasioning actual bodily harm, conspiracy to supply cocaine and cannabis. Accordingly he was no stranger to custody. The pre-sentence report told the court that the offence had been committed when the appellant was under pressure to pay off a debt to drug dealers in the order of £75,000. He had a history of substance abuse for 15 years. The reporting officer said that the tendency to misuse drugs led to the conclusion there was a high risk of re-offending and a medium risk of harm to the public. The probation service accordingly found itself unable to recommend a community penalty. In passing sentence the Recorder noted the appellant's record and the breach of the suspended sentence imposed only very shortly before the current offence. As he said, the co-accused also had numerous convictions. The three of them had hired a van for the purpose of committing crime and, as the Recorder put it, they clearly had the intention to steal high value equipment. The Recorder said he afforded full credit for the pleas of guilty. There was no dispute before the court as to the "higher culpability" of the offences for the purposes of the Sentencing Guidelines and the judge said it was beyond argument the intention was to steal high value property which, if removed, would have caused significant financial loss by the equipment itself but also in terms of the disruption to the construction business. The Recorder said that the case fell naturally into category 1 of the guidelines, higher culpability and greater harm even though no property of value had actually been stolen. The judge focused on the words at page 12 of the Sentencing Council Guideline which say this: "The court should determine culpability and harm caused or intended, by reference only to the factors below ..." (emphasis added) The offence was also aggravated, said the judge, by the offender's past records and in the case of the appellant by the fact that it was committed while he was subject to a suspended sentence. The judge referred to the pre-sentence report and the various documents and references that had been supplied to him. On this appeal, in short and cogent submissions, Miss Jackson argues that the sentence was excessive in terms of the guidelines simply because that excessive emphasis was placed upon the fact that serious harm was intended although the quantity of goods taken was, in the end, minimal. In her written grounds it was submitted that inadequate differentiation had been made between the appellant and the co-accused who had five previous convictions for burglary. She did not advance that point further this morning. On the first point, counsel put the matter this way in paragraph 15 of her advice on appeal: "The wording of the guideline does suggest that intention can be considered, however, given that one of the factors leading to 'lesser harm' is 'nothing stolen or only property of very low value' it is submitted that actual loss ought to be the main focus." Counsel also quotes an example given by the judge during the course of argument. In our judgment, with respect to Miss Jackson, there is nothing in the point that she has advanced. With regard to the guideline the introduction makes it entirely clear that "the harm caused or intended is what matters". There may be cases where some distinction has to be drawn between the intention of the burglars and their success in the enterprise. However, in our judgment, this is not that sort of case. The offenders had embarked on a well planned if completely incompetently executed venture, with hired vans and equipment to achieve a serious haul. They were about to achieve that object when they were disturbed. We can see no reason why the case did not fall squarely within category 1 and the judge adopted the guideline starting point for sentence as his own for the purposes of this case. As we say, the distinction in the nature of the records of the accused makes no difference. All were experienced criminals with highly unattractive records and the nature of them made little difference. The judge was right to note that factor in each case. No complaint is made as to the activation of the suspended sentence. That concession was rightly made. The judge gave full and accurate credit for the plea of guilty. In the circumstances the sentence was not excessive in any respect and, in spite of Miss Jackson's helpful submissions, the appeal has to be dismissed.