On the 9th of June 2021 a consultation on burglary offences was released. The Sentencing Council have put forward proposals to update the guidelines in relation to following three offences:
- Non-domestic Burglary
- Domestic Burglary
- Aggravated Burglary
The current Burglary Offences Definitive Guideline came into force in 2012. The Sentencing Council has evaluated that since then the severity of sentences for these offences has increased. Indeed the consultation states that:
‘the burglary guideline had, to some extent, contributed to the unanticipated increases seen in sentencing severity for non-domestic and aggravated burglary offences’.
The consultation proposes a new stepped format with three levels of culpability and harm instead of the current two. The Council have also proposed a new reference to statutory aggravating factors to be included in the factors increasing the seriousness of an offence. This is to ensure that only the most serious cases will fall into the top categories of harm and culpability. Thus, by introducing extra steps into the guideline the Sentencing Council hopes to reduce the severity of sentences for cases which fall in between the most and least serious offences.
Some of the proposed changes to the guidelines are as follows.
Although the number of individuals sentenced for this offence has decreased there has been an uplift in sentencing severity since the introduction of the 2012 guidelines.
The Sentencing Council have proposed a variety of changes to the current guidelines in relation to the levels of culpability. Indeed, the current guidelines include a high culpability factor of:
‘Premises or victim deliberately targeted (to include pharmacy or doctor’s surgery and targeting due to vulnerability of victim or hostility based on disability, race, sexual orientation and so forth)’.
The Sentencing Council have stated that hostility based on protected characteristics (i.e. race, disability and sexual orientation) is not a common factor of burglary offences. Due to this they believe that it should be moved away from being a ‘high culpability factor’ to be within the new statutory aggravating factors.
The Council have also decided that the current ‘targeted’ high culpability feature is a common feature of this offence and hence captures too many cases which would then be in the highest level of culpability. Due to this the Council have proposed removing any reference to ‘targeting’ from the guidelines.
The proposed guidelines also change the high culpability factor of ‘equipped for burglary’ to a medium culpability factor as it is not as serious as using a knife or other weapon which is already an established high culpability factor.
In addition to this, the high culpability factor of being a ‘member of a group or gang’ has also been proposed to be moved to the new statutory aggravating factors.
The proposed sentencing guidelines therefore include medium culpability factors which did not exist in the original guidelines. These medium factors include:
- ‘some degree of planning or organisation’ and:
- ‘Other cases that fall between categories A and C because:
- Factors are present in A and C which balance each other out and/or
- The offender’s culpability falls between the factors described in A and C’.
Once the court has determined culpability, the next step is to determine what harm the offence has caused or was intended to cause. The current sentencing guidelines have two categories of harm factors. The Sentencing Council has also proposed the creation of a middle level of harm (Category 2) to ensure that only the most serious offences fall into the highest level of harm (Category 1).
Indeed, the Council has evaluated that the factor of ‘theft of/damage to property causing a significant degree of loss to the victim (whether economic, commercial or personal value)’ may have led to the increase of sentence severity. Therefore they have proposed a change to the wording of this factor. The ‘significant degree of loss’ will become either a ‘substantial degree of loss’ which remains a category 1 factor or ‘some degree of loss’ which would be a category 2 factor.
The Council have proposed a similar solution for the factor of ‘trauma to the victim, beyond the normal inevitable consequence of intrusion and theft’. In the proposed guidelines, the word trauma changes to ‘much greater emotion’ in category 1 and to ‘greater emotion’ in category 2. The factor of ‘soiling, ransacking or vandalism of property’ has also been split into ‘soiling and/or extensive damage or disturbance to property’ in category 1 and ‘ransacking or vandalism’ in category 2.
The proposal of a creation of a new middle category means that offences which may have fallen into the highest level of harm will now fall into this second category and therefore may lead to a lesser sentence.
Determining the starting point of sentence
Despite the unexpected increase of sentence severity, the Sentencing Council have stated that sentences of individual cases were proportionate to the seriousness of the offence. Hence higher sentences in the current guidelines will be maintained for the most serious offences. However, the Council has proposed adding wording around a consideration of a community service including alcohol treatment to be considered at the lower end of offending. This could lead to some individuals being sentenced to a community service rather than a short term in custody.
Wording relating to ‘cases of particular gravity’ and regarding previous convictions meriting upward adjustments of the starting point for sentencing have also been removed from the proposed new guidelines. Therefore in theory we should see a smaller amount of sentences which include these upward adjustments.
Although the number of offenders sentenced for domestic burglary has decreased, most of these cases are sentenced in the Crown Court. The proposed revised guidelines also have 3 levels of culpability and harm so as to ensure only the most serious offences fall into the highest categories.
As with non-domestic burglary factors including protected characteristics have been moved to statutory aggravating factor. References to ‘targeted’ attacks have also been removed except for the ‘targeting of vulnerable victim’ which remains a high culpability factor.
The sentence range for domestic burglary starts from a low-level community order and can reach 6 years in custody. However, the Council have proposed wording to be included in the new guidelines in order for the most serious offences to receive the appropriate sentence; ‘for cases of particular gravity, sentences above the top of the range may be appropriate’. This essentially means that sentences may go above the 6 year ‘maximum’.
For this offence the Sentencing Council has tried to solve the issue of ‘double counting’ in relation to the use of weapons. As aggravated burglary occurs when an individual commits a burglary and at the time has an offensive weapon with them, the factor of being ‘equipped for burglary’ being a high culpability factor could lead to a more severe sentence due to ‘double counting’. Thus, the Council have proposed that the factor is removed from being a high culpability factor and become and aggravating factor of ‘weapon carried when entering the premises’. This should essentially remove the chance of double counting the factor in terms of sentencing culpability.
Sentencing Council member, District Judge Mike Fanning, said:
“The proposed revised guidelines introduce a broader range of offence categories. Our aim is that judges and magistrates will more readily identify the appropriate sentence starting point, which they will then adjust to take into account the aggravating and mitigating factors specific to that case.”
The consultation will close in September 2021 and following this, definitive guidelines will be published. Since the 2012 guidelines were published the structure of sentencing guidelines has evolved and thus the new proposed guidelines will be in line with the current approach.
Olliers Solicitors – Specialist criminal defence lawyers