R v Johann Dymeter

___________________ LORD JUSTICE DINGEMANS: I shall ask Lord Justice Holgate to give the judgment of the court. LORD JUSTICE HOLGATE:

1. On 4 July 2024, in the Crown Court at Isleworth before His Honour Judge Robin Johnson, the appellant (then aged 32) pleaded guilty to one count of burglary (count 1), five counts of attempted burglary (counts 3 and 9 to 12), one count of theft of a motor vehicle (count 2), three further counts of theft (counts 5 to 7), one count of taking a conveyance without authority (count 4), one count of dangerous driving (count 8) and one count of driving whilst disqualified (count 13). He also pleaded guilty in the Crown Court to two matters treated by that court as related summary offences under section 51 of the Crime and Disorder Act 1998, namely using a motor vehicle without third party motor insurance, contrary to section 143 of the Road Traffic Act 1988, and failing to stop when required to do by a police constable regulating road traffic, contrary to section 35 of that Act.

2. On 24 July 2024, the appellant was sentenced by Miss Recorder Wass KC. Taking into account the "slip rule" hearing which took place later that day, the Recorder imposed an overall term of ten years' imprisonment, made up as follows: consecutive terms on counts 1, 2, 3 and 8 of four years, two years, three years and one year respectively; concurrent terms of three years for each of the four other attempted burglaries (counts 9 to 12); concurrent terms of between one and three months for the three other thefts (counts 5 to 7); and a concurrent term of six months on count

4. On count 13 and the two related road traffic offences, the Recorder imposed no separate penalty, but ordered the appellant's licence to be endorsed. The appellant was disqualified from driving for a total of six years and six months, comprising disqualification for a discretionary period of 18 months, increased by 60 months, pursuant to sections 35A and 35B of the Road Traffic Offenders Act 1988, and until an extended driving test is passed. The appellant appeals against sentence with the leave of the single judge. Counts 1 and 2

3. On 1 June 2023, the appellant burgled a dwelling. The occupier, Mr Velikov, had left his home that morning. He returned at approximately 10.30 am to find the lock on the back door broken. He saw the appellant walking round from the side of the premises carrying the victim's rucksack, some of his carrier bags and another shoulder bag. There was a struggle during which the victim managed to retrieve his rucksack and the appellant dropped the other bags. The appellant ran off. The house had been ransacked, including each and every drawer and cupboard. Car keys, motorcycle keys and house keys were stolen. In the carrier bags were two games consoles, two laptops, two controllers, a display box of watches and about £2,000 in cash. In addition, Mr Velikov's Range Rover was stolen. The overall value of property stolen, including the vehicle, was about £15,500. Count 3

4. The following day the appellant returned to the same address with an unidentified male. Mr Velikov was asleep downstairs in the property and two friends were asleep upstairs. Having heard a noise, Mr Velikov opened the front door and found the appellant and the other male. Both of them ran off. Mr Velikov chased them and saw the appellant drop a knife next to the kerb before getting into the stolen Range Rover, locking himself in and driving away. Count 4

5. On 28 June 2023, the appellant broke into Mr Hassan's home and stole the keys to his Toyota car. He then drove off in that vehicle, which had been parked on the driveway outside. The victim was aged 84, but fortunately he was not present when the burglary took place. He made an insurance claim for the vehicle. Count 5

6. On 29 June 2023, the appellant, accompanied by an unknown male, stole nine bottles of alcohol valued at £223 from a Tesco store. Count 6

7. On 1 July 2023, the appellant, accompanied by an unknown male, stole a collection of tools valued at about £1400 from a van. Counts 7 to 13 and the other road traffic offences

8. On 2 July 2023, the appellant stole a set of car keys from a vehicle belonging to Mr Uppal. Those keys were for another vehicle owned by him. The keys were recovered. There were also four attempted burglaries on that date, in which the appellant and an unknown male knocked on the doors of different addresses to see whether the occupier was at home and then attempted to open doors. On one occasion (count 10) the two males returned to their car and came back with a small bag and approached a window. There were occasions in which they ran back to their car when confronted by the owners or they ran away once they realised that the premises were occupied. There was one incident in which two children were present at the address and they alerted their mother to the fact that someone was knocking at the window.

9. PC Jacques attended as a result of the attempted burglary in count

9. He pursued the appellant in his car. The appellant drove dangerously at speeds of up to 50 miles per hour in a 20 mile per hour zone on several occasions, entered a roundabout without giving way, overtook vehicles using the middle of the road, failed to slow down at a pedestrian crossing, failed to give way, causing another driver to brake to a halt, mounted the pavement, and drove on the wrong side of the road (count 8). He was disqualified from driving at the time by an order made on 20 October 2022. Given that the vehicle was not his, he did not have insurance for it.

10. When he was arrested, the appellant made no comment in interviews.

11. The appellant had 31 convictions for 81 offences between 2003 and 2022. 36 of those were for theft and similar offences, including burglaries of dwellings for which he had previously been sentenced to a Young Offender Supervision Order in February 2008 and to a Community Order in October 2008, which was subsequently varied to a Suspended Sentence Order after he failed to comply with requirements. When he was aged 21, the appellant was convicted of robbery, for which he received 16 months' imprisonment. Otherwise, the appellant had been sent to prison on several occasions for relatively short terms. He also had previous convictions for road traffic offences, including for dangerous driving, for which he was sentenced in March and then again in December 2018.

12. The Crown Court did not order a pre-sentence report to be prepared. For the purposes of section 33 of the Sentencing Act 2020, we are satisfied that no such report was or is now necessary.

13. We have read the Victim Personal Statement of Mr Velikov which describes the very serious impact on him the offending has had.

14. In her sentencing remarks, the Recorder said that the minimum term provisions applied in relation to the counts of burglary and attempted burglary, and that a minimum sentence of three years' imprisonment should be imposed, subject to credit for the guilty plea. She accepted that the appellant was entitled to full credit for his early guilty pleas, save that a minimum term of three years for burglary could not be reduced by more than 20 per cent.

15. The Recorder said that the appellant's addiction to drugs afforded some mitigation, but she went on to say that that was balanced by the appellant's antecedent history. The main factor reducing the level of sentences to be imposed was therefore the credit for the guilty plea.

16. The Recorder said that she had had regard to the relevant definitive guidelines and to the principle of totality. She assessed the dangerous driving as falling within category A1, with a starting point of 18 months' imprisonment, within a range of one to two years. She said that the burglary and attempted burglaries involved high levels of culpability and harm. Specifically, counts 1 and 3 fell within category A1, with a starting point of three years' imprisonment, within a range of two to six years. Count 2 (theft of the Range Rover) fell within category B2, with a starting point of one year's imprisonment, within a range between 26 weeks' imprisonment and two years. The Recorder treated counts 1, 2 and 3 as lead offences, attracting consecutive sentences, which were in effect aggravated by other offences, including the attempted burglaries and thefts, for which concurrent sentences were passed. The Recorder said that count 4 fell within category B2. She passed a consecutive sentence for the dangerous driving.

17. The Registrar sent to the parties a note identifying potentially unlawful issues with certain of the sentences. The prosecution filed a Respondent's Notice dealing with those points and the appellant responded. We are grateful to Miss Gemma Noble for the appellant and Mr Lyndon Harris for the prosecution for their helpful written and oral submissions.

18. In summary, it is submitted for the appellant that, firstly, the Recorder should have ordered the sentences on counts 2 and 3 to run concurrently with the sentence on count

1. Count 2 arose directly out of count 1, and count 3 related to the same property. Secondly, the overall sentence was manifestly excessive as the Recorder did not give adequate consideration to the principle of totality. If the judge had assumed 20 per cent credit for the guilty plea on count 1, the sentence after trial would have been five years' imprisonment for that offence. The implicit sentences after trial were three years' imprisonment on count 2 and four years six months' imprisonment on count

3. Similarly, the implicit sentence after trial for count 8 was 18 months' imprisonment. The overall sentence of ten years' imprisonment was, therefore, equivalent to 14 years after trial, which was manifestly excessive for the overall criminality involved, applying the totality principle.

19. The Respondent's Notice recognised that in relation to count 1, the Recorder imposed a sentence greater than the minimum term and therefore she was not restricted to a credit of only 20 per cent for the guilty plea. Accordingly, the implicit sentence after trial for count 1 was six years' imprisonment, not five years. Mr Harris submitted that the sentence for count 2 should be factored in to the sentence for count

1. The starting point for count 3, a category 1A offence if completed, should be three years' imprisonment. The occupier was present and there was a confrontation. The appellant returned with an accomplice to target a victim who was vulnerable through having been burgled the previous day. The offence was planned and the appellant was equipped with the keys and the car stolen the previous day. Overall, a sentence after trial of nine years' imprisonment was justified for counts 1, 2 and 3, which would equate to six years after credit for the guilty plea.

20. Mr Harris then submitted that the attempted burglaries involved four different victims on the same day, which, taken together, merited a consecutive sentence after trial of four years' imprisonment.

21. Count 8, which was significantly aggravated by count 13, driving while disqualified, merited a consecutive sentence after trial of 12 months' imprisonment.

22. Counts 4 to 7 involved offences of theft. Taking into account the seriously aggravating feature of car key burglary, these four offences together merited a consecutive sentence after trial of three years' imprisonment.

23. Overall, Mr Harris submitted that the notional sentence after trial, by combining these figures would be 17 years; but after allowing for totality a sentence after trial of 15 years' imprisonment would not be manifestly excessive, and, likewise, the sentences in fact imposed by the Recorder allowing credit for the guilty pleas. Discussion

24. It is convenient to deal with the substance of the appeal before turning to the issues on unlawfulness, on which there is substantial agreement and which do not affect the sentencing for the main offending.

25. Rightly, the appellant does not challenge the imposition of a consecutive sentence of 12 months' imprisonment for the dangerous driving.

26. The Recorder did not apply the minimum sentence provisions in relation to count

1. So the notional sentence after trial for that offence was six years' imprisonment, and the overall sentence after trial for all the offending was 15 years' imprisonment, not 14 years. We also note in passing that the Recorder erred in suggesting that the minimum sentence provisions applied to the attempted burglaries. There is clear authority that they do not. But this point did not affect the sentences that she imposed in this case.

27. The sentencing for all the offences on the indictment could have been structured in a number of different ways, so long as the overall sentence before and after credit for the guilty pleas was not manifestly excessive. We consider that an overall sentence of 15 years' imprisonment after trial, and after allowing for totality, was manifestly excessive. It did not sufficiently allow for the totality principle and it was disproportionate to the overall criminality involved, after taking into account the number and type of offences, the separate victims involved, and the period of time over which the offending took place. It must therefore be reduced.

28. We agree that the sentence for count 2, relating to the same victim and essentially the same incident, should have been ordered to run concurrently with that for count 1; but on that basis it was an aggravating factor. The factors relating to count 3, including the carrying of a knife to the victim's dwelling, were serious and merited a consecutive sentence, or, alternatively, a further significant uplift in the sentence on count

1. Taking counts 1 to 3 together, a sentence after trial of at least six years nine months' imprisonment was justified – five years for count 1, one year nine months concurrent for count 2 and one year nine months consecutive for count 3, allowing for totality. After allowing full credit for the guilty pleas, those sentence would have been 40 months on count 1, 14 months concurrent on count 2 and 14 months consecutive on count

3. We have treated counts 1 to 3 as a separate group of offences, the sentences for which are not aggravated by any of the other offences.

29. We consider that the consecutive sentence of 12 months' imprisonment on count 8 for the dangerous driving, after credit for the guilty plea, should remain undisturbed.

30. We also consider that it is appropriate to reflect the criminality of the remaining offences by imposing a consecutive sentence of three years' imprisonment in total for the attempted burglaries in counts 9 to

12.

31. The effect of these alterations is that the overall sentence, after credit for the guilty pleas, is reduced from ten years to eight years six months' imprisonment.

32. We turn to the unlawfulness of certain sentences. We have the benefit of detailed analysis by the Registrar and by Mr Harris, with which Miss Noble agrees. It is unnecessary to prolong this judgment by addressing those matters which, it is common ground, no longer give rise to any issue.

33. Although at the time of sentencing in the Crown Court it appeared that the offence of failing to stop when directed by a police constable regulating road traffic had been sent to that court under section 51 of the 1998 Act, it is agreed that the magistrates' court had in fact withdrawn that offence and therefore for that reason the Crown Court had no jurisdiction to deal with the matter, both as to the appellant's guilty plea and the passing of sentence. However, that is not a matter which falls within the jurisdiction of the Court of Appeal.

34. Instead, following established practice (see, for example, R v Wilson [2019] EWCA Crim 2410; [2020] RTR 20), Dingemans LJ and I reconstitute ourselves as a Divisional Court of the King's Bench Division of the High Court. We formally grant permission to the appellant to apply for judicial review of both the conviction and sentence in relation to the offence under section 35 of the Road Traffic Act 1988. We order that the service of a claim form be dispensed with and that all time limits be abridged, so that we may now deal with the substantive determination of the claim for judicial review. Having considered the merits of that claim, we quash both the conviction and the sentence in relation to the offence under section 35 of the 1988 Act.

35. We now reconstitute ourselves as a Court of the Criminal Division of the Court of Appeal. We agree with the parties that the Recorder had no jurisdiction to endorse the appellant's licence with the convictions under counts 2 and

4. Neither of those offences is listed in Part 2 of Schedule 2 to the Road Traffic Offenders Act 1988. We therefore quash that part of the order made by the Crown Court.

36. Turning to the terms of imprisonment, on count 1 we quash the sentence of four years' imprisonment and substitute a term of 40 months. On count 2, we quash the consecutive sentence of two years' imprisonment and substitute a concurrent term of 14 months' imprisonment. On count 3, we quash the consecutive sentence of three years' imprisonment and substitute a consecutive sentence of 14 months' imprisonment. On count 9, we quash the concurrent sentence of three years' imprisonment and substitute a consecutive sentence of three years' imprisonment.

37. The effect of these changes is that the appellant is sentenced to an overall term of imprisonment of eight years six months, instead of ten years.

38. Lastly, we deal with disqualification. We quash the order in the Crown Court for disqualification from driving and substitute the following order. The appellant is disqualified from driving for a period of five years and nine months, and thereafter until he passes an extended driving test.

39. The period of five years and nine months is made up as follows: discretionary disqualification of 18 months for the offence of dangerous driving; an extension period, pursuant to section 35A of the Road Traffic Offenders Act 1988, of six months; and thirdly, an uplift period, pursuant to section 35B of the 1988 Act, of three years and nine months.

40. This appeal is allowed to the extent we have set out above. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________