Revised Guidelines for Burglary Offences: An Update
On 1 July 2022, the Sentencing Council’s Revised Guidelines for the offences of domestic, non-domestic and aggravated burglary will come into effect in England and Wales. The Revised Guidelines are the product of a consultation, which sought to evaluate the impact of the existing Guidelines on sentencing outcomes. The latest Guidelines represent a significant departure from the existing Guidelines both in terms of their structure and content. These changes will need to be carefully considered by both practitioners and sentencers going forwards.
The need for change
It was not anticipated that there would be any impact on sentence severity when the existing Guidelines came into force in 2012; the Guidelines were introduced solely as a means to achieve greater consistency in sentencing decisions. Despite this, subsequent research by the Sentencing Council revealed that sentence severity increased for all three burglary offences following the introduction of the existing Guidelines. The most notable impact concerned sentences for non-domestic burglary, where the numbers of both suspended and immediate custodial sentences rose sharply after the existing Guidelines came into effect.
One factor that has been identified as contributing to these increases, is the larger number of higher culpability and greater harm factors in the existing Guidelines as compared with the previous Guidelines; this made it more likely that offending would fall within the most serious category and receive a harsher sentence. Furthermore, the shift away from using defined amounts of financial loss to determine culpability, and the inclusion of commercial and personal loss to the victim as higher culpability factors may also have played a role in more severe sentences.
What has changed?
Structurally, the existing Guidelines have only two categories of harm (greater harm and lesser harm) and two categories of culpability (higher culpability and lower culpability). The Revised guidelines have three categories of harm (categories 1, 2 and 3) and three categories of culpability (high culpability, medium culpability, low culpability). Further, whilst the existing Guidelines have only three starting points, the Revised Guidelines have nine. The maximum sentences for burglary have not been altered by the Revised Guidelines.
In relation to culpability factors, offending motivated by or demonstrating hostility based on protected characteristics has been removed as a higher culpability factor and is now only an aggravating factor. Membership of a group is also no longer a higher culpability factor and is now an aggravating factor. In the context of aggravated burglary, a weapon being present on entry is no longer a higher culpability factor and has also been included as an aggravating factor.
Factors that have been retained within the highest categories of culpability include offending, which demonstrates a significant degree of planning or organisation, the targeting of a vulnerable victim and offending where a knife or other weapon was carried in the context of domestic and non-domestic burglary. New medium culpability factors include offending, which demonstrates some degree of planning, and, in the case of domestic and non-domestic burglaries, instances where the offender goes equipped for burglary. The lowest category culpability factors have remained largely unchanged in the Revised Guidelines, with “coercion” and “intimidation” being added to involvement through exploitation.
In relation to harm factors, theft of or damage to property causing a significant (now “a substantial”) degree of loss to the victim, whether of economic, commercial or personal value, is still within the highest category of harm. As is the victim being on, or returning to, the premises when the offender is present. Soiling, ransacking and vandalism have now been subdivided, with soiling and/or extensive damage or disturbance to the property now in the highest category of harm, and ransacking or vandalism now in the second category.
Offending causing physical or psychological injury to the victim has been retained in the Revised Guidelines, with offending causing substantial injury of this type in the highest category of harm and offending causing some injury of this type in the second category. Theft or damage causing a moderate degree of loss has been included as a second category harm factor. As with the culpability factors, the lowest culpability harm factors have remained unchanged in the Revised Guidelines.
It remains to be seen whether the Revised Guidelines will be able to reverse the trend of increasing sentence severity ushered in by the introduction of the existing Guidelines. The structure of the Revised Guidelines, with new medium categories of harm and culpability, certainly provides sentencers with greater flexibility, which could lead to a more measured approach to the categorisation of offending in future. This is reinforced by the fact that some higher culpability factors have been reduced to aggravating features only. However, with several of the higher culpability and greater harm factors retained, and evidence of a general trend of increasing sentence severity, particularly in the magistrates’ courts where the majority of offenders are sentenced, it is not clear what practical effect the Revised Guidelines will have. These changes also come within a context of increased sentencing powers in the magistrates’ courts, which also raises questions over their potential impact.
For defence practitioners, the Revised Guidelines helpfully provide greater room to manoeuvre in mitigation. Further, the fact they were specifically introduced to correct inflation in sentences is a fact which can be underscored at sentencing hearings.