*294 R. v Mark Andrew Brown

Court of Appeal

22 October 1981

(1981) 3 Cr. App. R. (S.) 294

The Lord Chief Justice, Mr. Justice Mustill and Mr. Justice McCullough

October 22, 1981

Burglary—Burglary of Factory by Young Man of Previous Good Character—Whether Community Service Order Appropriate.

References: community service orders, Principles of Sentencing , p. 237.

Commentary: [1982] Crim. L.R. 126.

Borstal training varied to allow the immediate release of an appellant aged 19 who was concerned in a burglary at the premises of his employers. Observations on the suitability of community service orders in such cases.

The appellant, aged 19 and with no previous convictions, pleaded guilty to burglary. He had taken part in a burglary at the premises of his employer, allowing his keys to be used to unlock padlocks securing the door of the stock room. Goods worth a total of about £2,850 were stolen. His co-defendant, an older man with a substantial record, was sentenced to 12 months’ imprisonment. The appellant was sentenced to Borstal training. Held but for the availability of community service orders, a custodial sentence would have been entirely appropriate, having regard to the breach of trust, but the case was tailor made for community service. The appellant was a first offender (although the position would have been the same if he had had a “light” criminal record), he came from a stable home background, with a wife and young child, had a good work record and had a job available. There was apparently genuine remorse and the risk of re-offending was slight. If the court were to sentence the appellant de now , it would make a community service order, but as he had been in custody for three months the sentence would be varied to imprisonment for one day.

C. Jervis for the appellant.

McCullough J.:

On July 30, 1981 at the Crown Court at Bristol, the appellant pleaded guilty to one offence of burglary and was ordered to undergo Borstal training.

He appeals against sentence with the leave of the single judge.

He is 19, without any other convictions. He is a married man who was at the time living with his wife and their young child. At the time of this offence he was only 18, and he was working for Wonderfire Ltd. of Bristol. They make gas fires. In that capacity he was entrusted with the keys of the padlocks of the main stock room.

On the date in question he and his brother-in-law, a man called Blake, then aged 21, with a dreadful criminal record, burgled the premises together, the appellant’s keys being used to unlock the padlocks and the padlocks then being thrown away, so that it would not appear that they had not been broken. Nineteen gas fires were taken, worth very nearly £150 each.

It was intended to sell them. He and Blake together visited a man called Briggs to *295 whom a number of fires were delivered. Although the appellant was present at that time, it appears that he did not take part in the arrangements made for the selling. Three fires were later recovered from Briggs and a further six or seven from Blake. The remaining fires are missing.

The appellant was arrested two or three weeks after the burglary. He admitted his part. He said that he had hoped to settle certain debts out of his share of the proceeds from the sale of these fires.

The other two also pleaded guilty. Blake was by then 22. He had 13 previous court appearances, the last for theft having been as recently as three months before this offence. He had been to Borstal, he had served one term of imprisonment, he was in breach of a suspended sentence and of a community service order. He was sent to prison for 12 months. Briggs was 27. He had 12 previous court appearances, including one resulting in a term of imprisonment, his last appearance being only five days before this particular offence when a community service order had been made following a conviction for theft.

In the starkest contrast was the appellant. He was 19, younger than the others, and without any previous conviction at all. He was married and, as I have said, living with his wife and young child. He was in employment with Wonderfire until the occasion of his arrest for this offence. It is impossible, reading the papers, to resist the conclusion that he would never have offended but for the influence of Blake.

Mr. Jervis, who has appeared for him today, as he did in the court below, accepts that the order of Borstal training was appropriate in the light of the information then available to the Crown Court, particularly having regard to the fact that this was a case of a serious breach of the trust that his employers had placed in him. However he draws our attention to a letter from the employers, written after this young man had arrived in Borstal. It says amongst other things, “… we were more than surprised to learn that you were involved in the robbery …. We all thought of you as the best worker in the factory, apart from your manager …. Should your appeal be successful, then we would seriously consider any application that you might make to take on your old job for this Winter.” The letter ends with the words “I do hope that your appeal is successful.”

In the light of that letter, which of course was not available at the Crown Court, we have looked at all these mitigating factors again. We have come to the conclusion that, but for the availability nowadays of orders for community service, a custodial sentence is entirely appropriate, having regard to the breach of trust. But this case is tailor-made for a community service order. We have here a first offender—indeed the position would have been the same if he had had what I might call a “light” criminal record; he came from a stable home background with a wife and a young child; he had a good work record; and it now appears that a job is available to him. There is apparently genuine remorse and the risk of re-offending appears slight.

Taking all those factors together, were we sentencing this man de novo, we would make a community service order. But the appellant has been in Borstal for the past three months. We think that that is enough. We are not therefore going to make a community service order. We have to pass a sentence of some sort. We cannot very well pass a sentence of such a term of imprisonment as will enable his immediate release, because that would offend against the provision which prohibits the imprisonment of offenders of his age if some other method of dealing with them is appropriate. Accordingly we propose, having quashed the order for Borstal training, to substitute the nominal order that he be imprisoned for one day. To that extent the appeal is allowed.