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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 >> Ogungbile, R. v [2017] EWCA Crim 1826 (22 November 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1826.html Cite as: [2018] 1 Cr App R (S) 31, [2017] EWCA Crim 1826, [2017] WLR(D) 816, [2018] 4 WLR 56, [2018] Crim LR 415

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
His Honour Judge Tudor Owen
AND IN THE DIVISIONAL LIST OF THE ADMINISTRATIVE COURT.
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/11/2017

HALLETT LJ:

1. We heard the substantive appeal in this case on 5 October and announced the result on that day. The appeal was allowed and the result will appear below. We indicated that we would give our reasons in writing at a later stage. We adopted that course in part because of the unsatisfactory procedural history that was revealed at the hearing and in part because it was unclear how certain aspects of that procedural history were to be dealt with by this court. Mr Richard Bentwood for the Appellant and Mr Benjamin Douglas-Jones for the Respondent (neither of whom appeared before the judge) undertook to agree a course that would deal with those outstanding procedural matters and we permitted them time to reach an agreement. They have now done so and we will refer to the agreement below. We are grateful to them both for the assistance they have given us.
2. With the permission of the single judge, the Appellant appeals against a total sentence of 4 years and 8 months' imprisonment imposed by His Honour Judge Tudor Owen at Inner London Crown Court on 1 December 2016.
3. The Appellant fell to be sentenced for two distinct matters -

First, having pleaded guilty before South London Magistrates' Court on 3 November 2016 for offences of theft ('Charge 1') and handling stolen goods ('Charge 2') and for what was said to be a consequent breach of a suspended sentence order made by Guildford Crown Court on 14 March 2016 ('Charge 3'), he was committed to the Inner London Crown Court for sentence. The suspended sentence was one of 36 weeks' imprisonment suspended for 18 months.

Second, on 1 December 2016 he pleaded guilty to each count on a 5-count indictment to which we will refer in more detail below and thus was to be sentenced in relation to those matters.

4. The total sentence passed in respect of the offences on the indictment and the two substantive offences committed to the Crown Court for sentence was 4 years and the suspended sentence was activated to the extent of 8 months consecutive to that overall sentence making the total sentence to which we have referred.
5. On the material before him, the single judge observed there were a number of unsatisfactory aspects of the whole process leading to the sentences imposed. On the basis of what we were told at the hearing of the appeal, the situation was even more unsatisfactory than that noted by the single judge.
6. It is not an easy story to tell and, despite the assistance we received, we found aspects of the story confusing (as, it is plain, did the judge) and in some respects found it difficult to believe that matters could have developed in the way they did. Nonetheless, we will endeavour to give a chronological account of events and then explain the issues that have arisen.
7. We should begin by observing that the Appellant was aged 26 at the date of sentence and had 7 previous convictions comprising 14 offences, spanning the period from 2009 to 2016. His relevant convictions included an offence of fraud in 2015, for which he received a community order, and conspiracy to defraud in March 2016, which gave rise to the suspended sentence to which we have referred. He had no previous convictions for burglary and had not been sentenced to any immediate custodial sentence before the present sentence.
8. In order to understand the narrative, it is necessary to appreciate that two individual victims of some of the criminality reflected in the offences were, as we will call them, a 'Ms C' and a 'Ms A'. They each lived in a block of flats in Greenwich ('the Greenwich flats'). Another block of flats figures in the narrative which was located in South Lambeth Road ('the South Lambeth Road flats'). An associate of the Appellant, a Mr Reiss Holloway, lived at those flats. The Appellant's own address was a very short distance from this flat.
9. As framed in the charges he faced before the magistrates' court, the first alleged offence occurred on 18 April 2016. It was a charge of handling stolen goods on the basis that he dishonestly undertook or assisted in the retention of stolen goods, namely, bank cards and bank statements belonging to Ms C and Ms A. The place of the offence was alleged to have been the South Lambeth Road flats. Somewhat confusingly, despite being the first alleged offence chronologically, this was, as we have indicated, framed as 'Charge 2'. As will become apparent, it was apparently intended to be an alternative to the charge of theft alleged in Charge 1. The reason for alleging that the offence took place on 18 April 2016 is dealt with below.
10. Charge 1 alleged the theft of the items referred to in Charge 2. The theft was alleged to have occurred at the South Lambeth Road flats, but on 25 April 2016, not on the earlier date referred to in Charge 2.
11. The relevance of the date of 25 April 2016 is that that is the date when the Appellant was identified as having entered the communal, lobby area in the Greenwich flats by using an emergency access drop-key to override the electronic security and thus gain entrance to the lobby. It was this illegal entry that led to the charge eventually reflected in Count 1 on the indictment. We will return to the particulars of that count below. He was identified by a police officer on the following day and arrested that day when police were executing a search warrant for controlled drugs at the South Lambeth Road flats. He was found to have on him a Santander bank card belonging to Ms C and two letters from Santander to her containing online banking log-in details. Those letters were dated 19 and 20 April 2016. He claimed to have found them at the premises of the South Lambeth Road flats. He was also found in possession of a NatWest bank statement belonging to Ms A which recorded transactions up to 20 April 2016.
12. Given the dates on those documents, it is a natural inference that he could not have come into possession of them until, at the earliest, 21 April 2016 and probably a day or so later. He was found in possession of them on 26 April 2016 and again the natural inference, given his observed entry to the Greenwich flats on 25 April, is that he took them that day. Although the particulars of Count 1 alleged only an unlawful entry "with intention to steal therein", the reality was that he did take those items belonging to Ms C and Ms A on 25 April. Although no amendment was made to the indictment, that is the way the case was opened against him by counsel appearing for the prosecution without objection by defence counsel - and indeed the Appellant pleaded guilty.
13. Whilst Count 1 should have been particularised differently, as Mr Douglas-Jones accepts, no injustice was done by dealing with the Appellant in relation to this count by reference to the facts we have recited and Mr Bentwood takes no point about that.
14. However, it is here that matters appear to have taken a significantly wrong turn. Prosecution counsel continued to open the case against the Appellant on the basis that the card and papers belonging to Ms C had been used by him to obtain £4150 from Ms C's account. This was the way in which Count 2 (possession of articles, namely, the bank card, bank statements and letters, for use in the course of or in connection with fraud) was put even though not particularised in that way. The use of the items taken in the burglary for this purpose, if it could be established, was potentially relevant to the categorisation of the burglary as one involving "greater harm" within the sentencing guidelines, but little more if it could not be established that it was the Appellant who perpetrated the frauds. To the extent that the judge had regard to the guidelines (which, with respect, is not at all clear), it would appear that this factor influenced his approach to sentence on Count 1.
15. What Mr Douglas-Jones has told us, however, having looked into the background more fully, is that the fraud using Ms C's documents began on or about 18 April and, accordingly, since that pre-dated the burglary in Count 1, the effect of the frauds on Ms C could not be attributed to the Appellant's involvement in that burglary.
16. Whilst we consider that it would be open to a sentencing court to take account of the use to which it was plainly intended by the Appellant that the documents should be put, it could not fairly be by reference to the impact on the specific victim in this case, Ms C.
17. It is not at all clear to what extent the Appellant resisted, through his then counsel, the suggestion that Ms C's losses (albeit temporary as they turned out) and consequent anxiety and distress were attributable to the burglary in Count 1, but we have no alternative but to treat those matters as not being matters for which he was responsible.
18. On the day of his arrest (26 April 2016), in the Appellant's car were found two fire brigade emergency access drop keys which had probably been used in the burglary, but nonetheless were accepted by him as being in his possession for use in burglary. That was Count 3.
19. Those offences were plainly committed in breach of the terms of the suspended sentence. The Appellant was on police bail at the time also.
20. He was released from custody. On 30 June 2016, some two months later, he returned to the Greenwich flats, tail-gated a resident to obtain access to the foyer and again stole letters and post from a mail box. He was also seen shining a torch into other mail boxes. It was all captured on CCTV. That was Count 4.
21. He was seen and, when making his escape, he used an electrical box which was attached to a gatepost as a foothold to get over the gate causing damage of between £200-300. This was a criminal damage allegation reflected in Count 5.
22. What has emerged now in relation to Charges 1 and 2 is that, in the first instance, they were intended as alternative charges. It follows that a plea of guilty to one should have resulted in an acquittal on the other. When the Appellant pleaded guilty to Charge 1, Charge 2 should have been withdrawn and an acquittal recorded. In relation to Charge 1, we have been told that when it was agreed that Count 1 on the indictment should be treated as encompassing the original theft of the bank documents referred to in paragraph 11 above, Charge 1 was to be treated as an alternative to that count. Counsel agree that the right course is to quash the sentence imposed and substitute an order that there should be no separate penalty. We announced at the conclusion of the hearing that we reconstituted ourselves as a Divisional Court, granted permission to apply for Judicial Review, dispensed with the issue and service of the Judicial Review Claim Form and abridged all times necessary to allow us to determine the claim for the judicial review after the hearing, which we now do. In accordance with this, we quash the conviction on Charge 2 and direct that it is substituted by an acquittal and we quash the sentence on Charge 1 and direct that no separate penalty is imposed in relation to that matter,
23. The net effect of all this is that the Appellant fell to be sentenced for the matters on the indictment only and on the basis of the facts to which we have referred.
24. The judge was certainly misinformed about the circumstances surrounding the effect upon Ms C of the offence in Count I. It is, however, difficult to know to what extent those circumstances made a difference to the outcome so far as sentence was concerned because the judge made no reference to the guidelines at all. Equally, whilst he said that he gave credit for the pleas of guilty, he did not indicate what starting points he adopted and what discount he applied. The Appellant did not plead guilty in the magistrates' court, but he was unrepresented and, whilst we may be being over-generous in the circumstances, we will treat him as having pleaded guilty at the earliest opportunity and thus entitled to full credit.
25. One observation the judge made during the prosecution opening was that what the Appellant had been doing "sounded quite highly organised". We agree. We suspect that there is rather more to this case than is revealed by what the court has been told and the Appellant may be fortunate not to have faced a conspiracy count which might have given rise to inferences of wider involvement. However, he must be sentenced on the basis of the facts as presented, corrected as they have been in this court.
26. One matter that the judge may have overlooked in his sentencing exercise, because no-one drew it to his attention, is that there is some authority in this court (R v Lisa Doyle, 10 November 2000) to support the proposition that a burglary of a communal area is not to be treated as a dwelling-house burglary. It was said in that case that "... this was not truly a dwelling-house burglary in the sense that no individual flat was invaded or even attacked. The property was stolen from the common hall-way."
27. Whilst cases of this nature would inevitably be fact-specific and it would be wrong to over-state the import of the statement in Doyle, it is the case that no individual's flat was entered in the present case with all the well-recognised consequences for the lawful occupiers arising from such an entry. With some reluctance, we think we must apply at least the general thrust of the comment in that case to the circumstances of this case. However, targeting personal mail which has been delivered to what was supposed by the intended recipients of the mail to be a secure post box is itself a serious and doubtless upsetting matter for them, particularly if confidential information relating to bank and credit card details is the ultimate target.
28. That being so, we approach the sentencing exercise on the basis that the two burglaries were non-domestic within the guidelines, but will take account of other factors specific to this case.
29. We regard Count 1, albeit a non-domestic burglary, as falling between Category 1 and Category 2 of the guidelines. The culpability is high because the premises were plainly targeted, the burglary was well organised and there was undoubtedly a significant degree of planning or organisation. Whilst the actual loss to the victims at the time of the burglary was not significant, the potential loss, having regard to the plain intention underlying the offences, was significant. Against that background, a starting point of 12 months' imprisonment would certainly be justifiable which would then require an upward adjustment to take account of the Appellant's previous convictions and the fact that he was on bail at the time of the commission of the offence. A sentence of 18 months before any discount for a plea of guilty would be appropriate. Reducing that sentence by one-third yields a sentence of 12 months' imprisonment.
30. Very similar considerations apply to Count 4, but this was a second, well-planned, offence committed on the same premises after arrest for the first offence. That justifies a yet further upward adjustment from the starting point to 2 years' imprisonment before any discount for the guilty plea. That reduces the sentence to 16 months' imprisonment. Given the 2 months between the commission of the offences in Count 1 and Count 4 and the fact that the Appellant had been arrested and released for the offence in Count 1, there is every reason for imposing a consecutive sentence subject only to the question of totality.
31. Equally, there was every reason, as the judge concluded, for activating the whole of the suspended sentence, again subject to the issue of totality. In fact, for reasons that are not entirely plain, only 8 months of the 36 weeks' sentence were activated, but we would not alter that decision.
32. The total sentence, therefore, would be 3 years' imprisonment. We do not consider that the principle of totality requires any reduction of that sentence having regard to the nature of the criminality revealed by the Appellant's actions.
33. On all the other Counts save Count 5 (where the concurrent sentence of 3 months' imprisonment will remain undisturbed), we substitute for the concurrent sentences of 30 months' imprisonment by the judge concurrent sentences of 6 months' imprisonment reflecting a 9 months' starting point on each, reduced by one-third.
34. We announced the result of the appeal on 5 October as indicated above and it is allowed to that extent. The reasons for doing so are contained in this judgment.