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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 >> Brewster, R. v [1997] EWCA Crim 3421 (27 June 1997) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/3421.html Cite as: [1998] 1 Cr App R 220, [1998] 1 Cr App R (S) 181, [1997] Crim LR 690, [1997] EWCA Crim 3421, [1998] 1 Cr App Rep (S) 181

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice The Strand London WC2
		27 June 1997

THE LORD CHIEF JUSTICE: There are before the court six appeals against sentence following pleas of guilty to offences of domestic burglary. By section 9(1) of the Theft Act 1968,

"A person is guilty of burglary if --

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm."

The offences referred to in subsection (1)(a) are offences of stealing anything in the building, or inflicting grievous bodily harm on or raping any person in the building, or doing unlawful damage to the building or its contents. Where the building is a dwelling, the maximum sentence is one of 14 years' imprisonment. The offence of domestic burglary is to be contrasted with aggravated burglary, where the burglar has with him a firearm or imitation firearm, or an offensive weapon or any explosive, and robbery, which involves the use or threat of force: in each of these cases the maximum sentence is imprisonment for life.

It is noteworthy that under the Larceny Act 1916 burglary (then defined as breaking and entering a dwelling-house of another, in the night, with intent to commit any felony) was punishable with life imprisonment. It is also noteworthy that when, in 1991, the maximum penalty for non-domestic burglary was reduced to ten years' imprisonment, the maximum penalty for burglary of dwelling-houses was left unaltered.

All the present appellants entered as trespassers with intent to steal, or having so entered stole.

The current pattern of offending and sentencing

Domestic burglary is a very common offence. Police figures for 1995 record 644,000 such offences. But many domestic burglaries are not reported to the police: victims may suffer no loss; or may be uninsured; or if insured may suffer a loss within the excess payable by themselves, or may wish to preserve their no-claim bonus. The British Crime Survey suggests that in 1995 1,754,000 such offences were committed.

In 1996, 17,400 defendants were convicted of domestic burglary, of whom 12,800 were aged 18 or over. The Home Office estimate that of these 12,800 adult defendants, 5,700 were convicted for the first time and 2,800 for the second time; 4,300 had two or more previous convictions.

Provisional figures for 1996 (supplied to the court by the Home Office) suggest that rather more than half of all those sentenced, including those under 18, were sentenced in the Crown Court (7,871 in magistrates' courts, 9,517 in the Crown Court). Since the more serious offences would be committed to the Crown Court, one would expect some difference in the respective use of different penalties in magistrates' courts and the Crown Court, and in the length of custodial sentences imposed. The provisional figures show this to be so. Magistrates' courts discharged 12% of defendants as compared with 1% in the Crown Court; they fined 5% of defendants as compared with none in the Crown Court; they imposed community sentences in 56% of cases as compared with 20%; and they imposed immediate custody in 26% of cases as compared with 78%. The average length of custodial sentence imposed in magistrates' courts was 3.8 months, as compared with 19.5 months in the Crown Court; but it must be recognised that any average figure in the Crown Court may conceal a considerable variation in the length of different sentences. Over the four years, 1993 - 1996 inclusive, the use of custody increased at both levels: in the magistrates' court, from 23% to 26%; in the Crown Court from 63% to 78%.

The Home Office has analysed the sentences imposed on a restricted group of domestic burglars aged 18 or over who were sentenced in March 1996. Of those convicted for the first time of this offence, 26% were sentenced to immediate custody by magistrates' courts, and the average sentence length was 3.2 months; of those sentenced in the Crown Court, 68% were sentenced to immediate custody and the average sentence length was 15.9 months. Of those convicted of the offence for the second time, 30% were sentenced to immediate custody by magistrates' courts, and the average length of sentence was 3.6 months; 84% were sentenced to immediate custody in the Crown Court and the average length of sentence was 14.8 months (a curious statistical anomaly). Of defendants with two or more previous convictions of this offence, 53% were sentenced to immediate custody by magistrates' courts, and the average length of sentence was 3.8 months; 86% were sentenced to immediate custody in the Crown Court, and the average length of sentence was 19.6 months.

The figures reveal some differences of practice between magistrates' courts and different Crown Courts. In 1995, two magistrates' courts sentenced between 12.5% - 14.9% of domestic burglars to immediate custody, and at the other extreme one magistrates' court sentenced between 55% - 57.4% of domestic burglars to immediate custody. In 1996, one Crown Court centre sentenced less than 60% of domestic burglars to immediate custody; two Crown Court centres sentenced between 90% - 94.9% of such defendants. These variations may, at least to some extent, be explained by different approaches to the committal of defendants to the Crown Court.

From 1987 to 1992, the use of custody generally declined, probably in response to legislation, ministerial speeches and the White Paper on "Crime, Justice and Protecting the Public". Since 1993 the use of custody has increased very sharply, in response (it would seem likely) to certain highly publicised crimes, legislation, ministerial speeches and intense media pressure. In 1996, the use of immediate custody in the Crown Court (for all offences, not only domestic burglary) reached 60%, the highest level since the early 1950's.

The prison population is growing very rapidly. From a total of 48,000 in April 1994, it has now climbed to nearly 61,000. Of that total, some 10,000 are domestic burglars.

The framework of sentencing

The main statutory provisions relevant to these appeals are familiar but fundamental. By section 1(2)(a) of the Criminal Justice Act 1991 the court may not ordinarily pass a custodial sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it (as defined in section 31(2)), was so serious that only such a sentence could be justified for the offence. The test of seriousness has been expressed in terms of public, probably meaning judicial, perception: R v Bradbourn (1985) 7 Cr App R(S) 180; R v Cox (1993) 14 Cr App R(S) 479; [1993] 1 WLR 188. This test has been criticised as imprecise, which it is; but it is not easy to devise a more satisfactory test. Section 28(1) of the 1991 Act provides that nothing in Part I of that Act shall prevent a court from mitigating an offender's sentence by taking into account such matters as, in the opinion of the court, are relevant in mitigation of sentence; and R v Cox (supra) confirms that the court is not required to pass a custodial sentence even when the criterion of seriousness is satisfied.

Section 29 of the 1991 Act permits the court, in considering the seriousness of an offence, to take into account any previous convictions of the offender and any failure to respond to previous sentences, and requires the court to treat commission of offences while on bail as an aggravating factor. The prevalence of an offence has been held to affect its seriousness and hence to be a legitimate matter to consider in determining the length of a custodial sentence: see R v Cunningham (1993) 14 Cr App R(S) 444; [1993] 1 WLR 183.

Where a custodial sentence is imposed it must, for present purposes, be for such term, not exceeding the permitted maximum, as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it (1991 Act, sections 2(2)(a) and 31(2)). In forming its opinion under sections 1(2)(a) and 2(2)(a) the court is required by section 3(3)(a) to take account of all such information about the circumstances of the offence and offences associated with it (including any aggravating or mitigating factors) as is available to the court. It has been held that when a court is sentencing a young offender it would almost always be appropriate to impose a shorter sentence than would be imposed in the case of an adult, and that while a deterrent sentence might be appropriate in the case of a young offender it is necessary to balance that aspect with the youth of the offender: R v Marriott and Shepherd [1995] Crim LR 83. A deterrent sentence may be imposed provided it is commensurate with the seriousness of the offence: R v Cunningham (supra).

Section 48 of the Criminal Justice and Public Order Act 1994 requires a court, in deciding what sentence to pass on an offender who has pleaded guilty, to take into account the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty and the circumstances in which this indication was given.

The Offence

Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have.

The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.

The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value. Or the offence may be deliberately directed at the elderly, the disabled or the sick; and it may involve repeated burglaries of the same premises. It may sometimes be accompanied by acts of wanton vandalism.

The record of the offender is of more significance in the case of domestic burglary than in the case of some other crimes. There are some professional burglars whose records show that from an early age they have behaved as predators preying on their fellow citizens, returning to their trade almost as soon as each prison sentence has been served. Such defendants must continue to receive substantial terms of imprisonment. There are, however, other domestic burglars whose activities are of a different character, and whose careers may lack any element of persistence or deliberation. They are entitled to more lenient treatment.

It is common knowledge that many domestic burglars are drug addicts who burgle and steal in order to raise money to satisfy their craving for drugs. This is often an expensive craving, and it is not uncommon to learn that addicts commit a burglary, or even several burglaries, each day, often preying on houses in less affluent areas of the country. But to the victim of burglary the motivation of the burglar may well be of secondary interest. Self-induced addiction cannot be relied on as mitigation. The courts will not be easily persuaded that an addicted offender is genuinely determined and able to conquer his addiction.

Generally speaking, domestic burglaries are the more serious if they are of occupied houses at night; if they are the result of professional planning, organisation or execution; if they are targeted at the elderly, the disabled and the sick; if there are repeated visits to the same premises; if they are committed by persistent offenders; if they are accompanied by vandalism or any wanton injury to the victim; if they are shown to have a seriously traumatic effect on the victim; if the offender operates as one of a group; if goods of high value (whether actual or sentimental) are targeted or taken; if force is used or threatened; if there is a pattern of repeat offending. It mitigates the seriousness of an offence if the offender pleads guilty, particularly if the plea is indicated at an early stage and there is hard evidence of genuine regret and remorse.

We are indebted to counsel for referring us to a very large number of sentencing decisions on domestic burglary over the past 20 years. But the decisions have to a very large extent turned on the facts of individual cases and the circumstances of individual offenders; they have often been influenced by the legislation in force at the time. While, therefore, the decisions have identified the aggravating and mitigating factors mentioned above, they do not fall into neat groups or lend themselves to the derivation of any precise arithmetical tariff. We do not think any detailed review of the cases will prove helpful. But we should mention R v Edwards and Brandy (9 May 1996, unreported). The first appellant pleaded guilty to burglary of an unoccupied dwelling-house at night and was sentenced to four years' imprisonment. The second appellant was convicted of two burglaries of occupied dwelling-houses at night and was sentenced on these counts to a total of seven years'. Both had long records of persistent offending of this kind. Having reviewed authorities on the burglary of unoccupied dwelling-houses the court concluded that in a contested case the normal sentence was about three years', and with the benefit of a plea of guilty about two. Where the house was occupied the court was tentatively of opinion that the normal sentence would be four years' or more in a contested case and that, if mitigated by a plea of guilty, it would not normally attract a sentence of less than three years'. The court accordingly quashed the sentences imposed and substituted sentences of three years' and five years' respectively.

We have four reservations about this decision. First, we question whether adequate weight was given to the fact that, judging by their records, both appellants were dedicated professional burglars. Secondly, while entry to a house which is not occupied reduces the risk of confrontation and generally makes the burglary less frightening to the owner, it may also be evidence of careful planning and preparation. Thirdly, it places too much emphasis on past cases and seeks to establish sentencing brackets where none is possible or desirable. Fourthly, the demarcation between occupied and unoccupied houses is not clear cut, as the facts of R v Thorpe below illustrate. Read more literally than the court intended, R v Edwards and Brandy could, we think, be understood as making too sharp a distinction between occupied and unoccupied houses and as pointing towards what might, in some cases, be too low a level of sentence.

Overall, the cases show

(1) that burglary of a dwelling-house, occupied or unoccupied, is not necessarily and in all cases an offence of such seriousness that a non-custodial sentence cannot be justified;

(2) that the decision whether a custodial sentence is required, and if so the length of such sentence, is heavily dependent on the aggravating and mitigating features mentioned above and, usually to a lesser extent, the personal circumstances of the offender;

(3) that the courts, particularly the higher courts, have generally reflected in their sentences the abhorrence with which the public regard those who burgle the houses of others.

We turn now to the individual cases before the Court, in each one of which the single judge granted leave to appeal against sentence.

R v Brewster

The appellant, aged 51, pleaded guilty to three offences of burglary, and was sentenced by His Honour Judge Butler QC to nine years' imprisonment concurrent. The three daytime burglaries were all of unoccupied flats in central London, the most significant item stolen being a wristwatch valued at £10,000. There was no ransacking of the premises. The offences were committed within a three-month time span, the first one taking place just six months after his release from a previous sentence of imprisonment. In each case he had left his traces, being recorded on a video in one and having left a fingerprint in the other two. He made admissions in interview, although it is pointed out on his behalf that this was before the fingerprint evidence was discovered.

The appellant is a professional burglar. He has a formidable criminal record, including no fewer than 33 previous convictions for domestic burglary. His criminal career began at the age of 8. Included in it is a previous appearance in this court (R v Brewster (1980) 2 Cr App R(S) 191), when leave to appeal against a sentence of 10 years' imprisonment on pleas of guilty for two burglaries in which his haul had amounted to some £70,000 worth of jewellery was refused. In so doing, Lawton LJ said:

"There is no hope of rehabilitating this man. There is no hope that he will be deterred by prison sentences. All that the courts can do with him and his like is to ensure that they do not carry out raids on other people's houses for very substantial periods. That is the justification for this sentence."

In the instant case the sentencing judge was fully entitled to take into account (as he did) the appellant's appalling record as aggravating the seriousness of the offences. The observation made by Lawton LJ in 1980 that there was no hope of deterrence for this appellant has been fully borne out by events.

The sentence passed by His Honour Judge Butler QC was of course a very severe sentence. In our judgment however it was justified, and there are no grounds for interfering with it. For this purpose it matters not whether it is structured as nine years' concurrent or three years' for each offence consecutive. The appeal therefore fails.

R v Thorpe

The appellant, now aged 33, pleaded guilty to one offence of domestic burglary and was sentenced to four years' imprisonment. His co-accused pleaded guilty to the same offence and was sentenced to two years' imprisonment.

The burglary was committed at night. The 14-year-old daughter of the house came home and heard voices inside. She looked through a blind and saw the appellant carrying her portable television set. The appellant and his co-accused were caught after she had raised the alarm. Since the burglary she has been receiving counselling for trauma and distress from the victim support group. She was afraid to go to sleep alone.

The property actually removed was valued at £561, although property collected for removal downstairs was valued at approximately £2,000, and included the family's Christmas presents. The door forced to gain entry cost £300 to repair. The appellant has a significant criminal record, including 16 previous convictions for domestic burglary.

The sentencing judge (His Honour Judge Fox QC) rightly gave the appellant no great credit for the guilty plea. It was entered only on the day of the trial and the case had to be put back for reports. The sentencing judge was also entitled to infer (as he did) that the appellant was the leader in the enterprise, in that his co-accused drove the car and had no previous convictions.

In his sentencing remarks the judge stated that in the scale of seriousness he drew no distinction between this case, and one where the dwelling is occupied and the occupants are disturbed, because of the distress caused to the 14-year-old girl. It was said on the appellant's behalf that the judge should have treated the case as one of burglary of an unoccupied dwelling. We entirely disagree, and have no doubt that the judge was correct in his approach. The case does however illustrate the difficulty of seeking to draw too sharp a distinction between burglary of occupied and burglary of unoccupied premises in the sentencing ladder. In our judgment the real point to identify is the degree of distress caused to the victims by the intrusion. This the judge did.

We can see nothing wrong with this sentence, and the appeal

is dismissed.

R v Ishmael

The appellant, aged 32, pleaded guilty to one offence of burglary and was sentenced to four years' imprisonment.

The burglary took place during the daytime while the occupants of the house were at work. Substantial property was stolen (amounting to some £7,000) from the rooms of all of them. Significant damage was done in effecting entry. The appellant was caught red-handed with the stolen goods on him within minutes of the burglary. The burglary was committed to feed a drug habit. The appellant has a large number of previous convictions, including 23 for burglary, with 23 other burglary offences taken into consideration. He told the probation officer (who unsurprisingly assessed the risk of his re- offending as high) "I am a burglar, it is what I do".

The sentencing judge (Mr Recorder Thomas QC) said the public were entitled to a rest from his behaviour. We entirely agree. There is no merit in this appeal, and it is dismissed.

R v Blanchard

The appellant, aged 25, pleaded guilty to one offence of burglary and was sentenced to two-and-a-half years' imprisonment. His co-accused Piper (aged 19) and Lockhart-Cullum (aged 18) also pleaded guilty and were sentenced to eight months' and five months' detention respectively.

This was a night time burglary of a house occupied by three children aged 15, 10 and 8. Fortunately they did not wake up. The appellant and Piper entered by breaking a window, and Lockhart-Cullum drove the car. A neighbour heard the window breaking, and raised the alarm. Minimal property was in the event stolen. The appellant originally pleaded not guilty but changed his plea after receiving advice from counsel. Despite his youth the appellant has managed to amass an appalling criminal record, included in which are 15 burglaries, although only two of dwellings.

There is in our judgment nothing in the disparity point taken by the appellant. No matter what he was told in the course of mitigation, the sentencing judge (His Honour Judge Devaux) was entitled to infer that the appellant was the leader in the enterprise. He was older than the other two, and had a record. By contrast the two younger offenders had no previous convictions apart from Lockhart-Cullum's driving offence for the day in question. The marked difference in the criminal records of the three participants in itself also supports the relative punishments imposed.

The sentencing judge correctly identified as the aggravating feature in this case that there were children asleep in the house at the time. It was said in counsel's advice on appeal that the appellant believed that no one was at home, and only then took a decision to burgle the house. It was also said on his behalf that he and his co-accused left when they realised that the premises were occupied. The short answer to this is that burglars who enter dwellings (whatever their state of mind) take the risk that the court will view their conduct as being more serious because the premises were in fact occupied.

In our judgment the sentence of two-and-a-half years' was entirely proportionate to the appellant's criminality, and indeed had the sentence been longer he would still have had no cause for complaint. This appeal is also dismissed.

R v Woodhouse

The appellant, aged 49, pleaded guilty to one offence of burglary, and was sentenced to two years' imprisonment.

This was a night time burglary. At about 4.30am the female occupant of a ground floor flat, who had not locked her front door, woke up to find the appellant in her bedroom. He told her the front door had been open and he had walked in. He then turned and left. Nothing was taken and the appellant was arrested almost immediately. The appellant has eight previous convictions of a relatively minor nature, and none for burglary. He has never served a custodial sentence before, although suspended sentences of short duration have been imposed in the past.

The careful pre-sentence report puts the appellant's mitigation in clear terms. He is an alcoholic. In the middle of the night he felt a craving for alcohol. He went looking for alcohol. He saw a door open and "wandered in". He would only have stolen alcohol. He did not know anyone was in the room. He did not see himself as a burglar and was full of remorse. He acknowledged the traumatic effect on the victim.

The sentencing judge (Mr Assistant Recorder Tain) had all these mitigating factors well in mind. He rightly said that in the ordinary course a very substantial sentence would inevitably follow from the facts of the offence itself, and went on to say that he was modifying the punishment in the light of the mitigation.

For a burglar to enter the bedroom of someone who is asleep is in our judgment a seriously aggravating feature. No doubt the appellant is a pathetic figure, and the mitigation powerful. However, in the final analysis he took the risk of the premises being occupied, went into the occupant's bedroom and she woke up. Whatever his personal motivation or lack of intent towards her may have been, it must have been an utterly terrifying experience for the victim.

We think the sentencing judge was right, and this appeal also fails.

R v RH

This appellant was born on 27 August 1980. In the space of little more than a week and at a time when he was still aged 15 he committed four burglaries close to where he was living with his grandmother. The first in time involved an unoccupied dwelling where he stole nothing but was arrested as he climbed out of the window. The next three involved the dwellings of vulnerable people, starting within hours of his release following the aforesaid arrest. One involved the home of an epileptic man and his disabled girlfriend, both of whom slept as they were relieved of property to the value of £225. A week later the appellant burgled the house of an infirm female pensioner in the early hours of the morning. She was woken as the appellant was stealing her television and some cash. She experienced "terrible shock". The next night he broke into the home of a 93-year-old lady who did not hear him but was very shocked the following morning when she discovered the burglary and the theft of £150. On any basis, these were very serious offences. On 21 April 1997, at Inner London Crown Court, the appellant, having earlier pleaded guilty, was sentenced by His Honour Judge Campbell to a total of four years' detention under the provisions of section 53(2) of the Children and Young Persons Act 1933, made up of concurrent periods of three years' in respect of the unoccupied and four years' for each of the occupied dwellings. The judge accurately described the offences as "cruel and hateful burglaries" which resulted from "deliberately targeting the weak and vulnerable".

The maximum period of detention in a young offender institution for a person of the appellant's age is two years' (Criminal Justice Act 1982, sections 1A and 1B, as amended). Generally, such a person can only be sentenced to a longer period of detention under the provisions of section 53(2) of the 1933 Act if the offence is one punishable in the case of an adult with imprisonment for 14 years or more and the court is of the opinion that none of the other methods by which the case may legally be dealt with is suitable. In such a case the detention is in a place authorised by the Secretary of State, in reality a young offender institution. In the present case it was realistically conceded by Mr Clark that the offences not only crossed the threshold but also contained aggravating features such that resort to section 53(2) was not wrong in principle. He was also faced with the difficulty that on 17 May 1996 the appellant had been made the subject of a two-year supervision order for an earlier residential burglary and all these offences were committed after that date. However his submission to this court, as it had been in the court below, was that there is such exceptional personal mitigation that a non-custodial alternative was appropriate or, failing that, a substantially shorter period of custody.

The personal background of this appellant is described in a pre-sentence report by Mr Stone and a psychiatric report by Dr Paul Holmes, a consultant adolescent psychiatrist. To describe the appellant's personal history as tragic is an understatement. He has never known his father who was imprisoned for murder shortly before the appellant was born. Until June 1995 he had always lived with his mother in a relationship which was particularly close. At school he was persistently bullied. When he was about 10 or 11 his mother commenced a relationship with a man. In the course of their cohabitation the man mistreated the appellant's mother and was violent to her but the appellant was powerless to intervene. A child, now aged 3, was born and the appellant is very close to his half-brother. On a day in June 1995 the appellant was looking after him while their mother and her boyfriend went shopping. The appellant took him to the park and, on their return home, found no one there. The mother's boyfriend soon returned but the mother did not. She has not been seen since. Her disappearance has been treated as suspicious by the police but no one has been charged with any offence in relation to it. The appellant believes that she has been murdered, a belief which grows stronger as time passes and nothing is heard of her.

Until the disappearance of his mother the appellant was a reasonably stable boy. After her disappearance he and his half-brother went to live with their grandmother. She has done her best for him but his world has been torn apart. Unable to come to terms with the situation, he began to use crack cocaine in December 1995. He was only 15. He became addicted. The extended family saw his character change. Having previously been popular with all of them he became unrecognisable and completely untrustworthy. In March 1996 he committed the burglary which resulted in the supervision order. After that he lived either in local authority accommodation on remand or with his grandmother (under the supervision order). He did not receive any treatment at all for his addiction nor adequate counselling during this time. He then committed the present offences which resulted in his being remanded to local authority accommodation from which he absconded twice before he was remanded in custody to Feltham to which he has been returned since he was sentenced. All the offences were committed to fund his addiction. Somewhere along the way he formed a relationship with a 23-year-old woman who is expecting his child next month.

Dr Holmes considers the appellant to be clinically depressed. He and Mr Stone refer to a suicide risk. The psychiatric report concludes:

"I feel that [R] is a very vulnerable, fragile and somewhat immature youth .... I doubt whether he would have resources to survive in a prison environment. Moreover, I believe that he is at the moment (April 1997) depressed and .... the stress of a prison environment is likely to exacerbate these problems .... I believe that [R] is in urgent need of therapeutic help to address his bereavement, depression and drug addiction. I would suggest that his drug addiction is in fact very much secondary to his bereavement and depression .... I think his drug addiction may well recede as a problem. However, I feel he would certainly need to receive advice and counselling from a service skilled and expert in dealing with young people who have had an addiction to illegal drugs."

Mr Stone did not become satisfied that the appellant was a suitable case for therapeutic treatment until March but he is so convinced now. There has been a positive period of assessment at the Nottingham Clinic. He also made excellent progress at the Angel Drug Project and a report from there states that "to interrupt that now could be very detrimental to his long term physical and mental health". Mr Stone's recommendation was a two-year supervision order under section 12D(1) of the Children and Young Persons Act 1969 to include a direction to participate in specified activities for up to 90 days as an alternative to custody. Under such an order the appellant would spend six weeks as an in-patient at the Nottingham Clinic, which would also provide two years' aftercare and monitoring. The court has received confirmation from the clinic that finance for his treatment has been agreed by his local health authority and a bed is available should the appeal be successful.

It is against the background of this history and with the assistance of these reports that Mr Clark submits that there is quite exceptional mitigation in this case. We agree with that submission. Without in any way diminishing the gravity of the offences, we consider that the sentence of four years' detention under section 53(2) is too severe for this appellant. If he had been a little older or if the mitigation had not been so exceptional we would not have taken this view. In our view the dilemma presented by the appellant poses a choice between a significant but shorter period of custody or a supervision order of the kind proposed in the pre-sentence report. With some hesitation and after some anxiety (since we wholly understand why the judge felt compelled, reluctantly, to make the order he did) we have come to the conclusion that this case is so exceptional and possibly unique that the interests of justice tip the scales in favour of the supervision order. We certainly would not have come to this conclusion if the appellant had been slightly older when he committed these dreadful offences or if he had not had such traumatic events in his life which resulted in his drug addiction.

Accordingly, this appellant's appeal is allowed, the sentence of four years' detention is quashed and a supervision order in the recommended form is substituted.

No one should interpret this judgment as detracting in any way from the general rule that there is no mitigation in drug addiction as the motivation for crime. For the reasons to which we have referred, we consider the case of this appellant to be exceptional to the point of uniqueness. We are also conscious of the fact that he has served the equivalent of a four-month sentence.

THE LORD CHIEF JUSTICE: For the purposes of satisfying the provisions of the Act, it is necessary for us publicly to declare that we are making a supervision order instead of a custodial sentence; we are satisfied that the offence is of such seriousness that only a supervision order containing the present requirements or custody could be justified. The reasons for our reaching that opinion appear from the judgment that we have delivered. The order of the court should record the statement which has just been made pursuant to section 12D(1). We should also record that the appellant has consented to the making of this order.

We direct, under section 39(1) of the Children and Young Persons Act 1933, that in any report of this case the name of this appellant should not be published.