Clarifying Culpability in Burglary Sentencing: Differentiating Entry Tools from Weapons

1. Introduction

In Nunan, R. v ([2025] EWCA Crim 216) the England and Wales Court of Appeal (Criminal Division) revisited the Sentencing Council’s definitive guideline for domestic burglary. The case arose from Steven Nunan’s appeal against a 44-month aggregate sentence imposed for two domestic burglaries and one commercial theft. Leave to appeal was limited to whether the sentencing judge correctly categorised the first burglary (16 April 2024) under the guidelines. The heart of the dispute concerned use of a hammer: was it a “weapon carried” invoking high culpability (category A) or merely a tool for entry suggesting medium culpability (category B)?

Lord Justice Coulson, Mr Justice Goose (delivering the judgment) and Mr Justice Foxton unanimously held that the judge had erred in selecting category A2. They concluded that the hammer was not a weapon for threatening violence but simply an instrument used to gain entry; accordingly, category B2 applied and the sentence for that count was reduced from 24 months to 18 months. The total term therefore fell from 44 to 38 months.

2. Summary of the Judgment

The Court of Appeal allowed the appeal in part. Only the sentence for the burglary of 16 April 2024 was disturbed.
Re-categorisation: From A2 (high culpability: weapon carried) to B2 (medium culpability: equipped for burglary).
Approach adopted:
- Starting Point in B2: 18 months.
- Uplifts for two harm factors—moderate psychological injury and £9,000 loss—raised the notional sentence to 30 months.
- Mitigation (remorse, admissions, six-year gap in offending) reduced that figure to 27 months.
- One-third credit for an early guilty plea produced 18 months.
Other sentences (14 months for the earlier burglary and 6 months for the commercial theft) were deemed appropriate; totality was preserved at 38 months.

3. Analysis

3.1 Precedents Cited or Underpinning the Decision

While the judgment itself does not list a litany of authorities, its reasoning is firmly embedded in established case-law on burglary sentencing and interpretation of the guidelines. The following strands are discernible:

Sentencing Council, ‘Burglary Offences Definitive Guideline’ (2012, updated 2022)
The framework distinguishes three culpability levels: A (high), B (medium) and C (low). Relevant to this case are:
- Culpability A (high) – includes “weapon carried”.
- Culpability B (medium) – includes “equipped for burglary”.
The appellate court’s task was to determine which limb the facts engaged.
R v McInerney & Keating [2003] EWCA Crim 934 – confirms that an item primarily intended as a tool may still qualify as a weapon if carried to threaten violence. Conversely, absence of threat strongly suggests mere “equipment”.
R v Saw & Another [2009] EWCA Crim 1 – drew the distinction between “burglary armed with threat” and “burglar equipped for entry”, emphasising evidential inquiry into defendant’s purpose.
Attorney-General’s Reference (No 62 of 2013) (R v Bailey) [2013] EWCA Crim 2136 – reiterated that carrying a weapon automatically aggravates culpability; however, the prosecution must prove that the item was intended as or could reasonably be perceived as a weapon.

Mr Justice Goose’s analysis mirrors these authorities: the video evidence showed that once inside, the hammer was placed in a rucksack; there was no gesture of intimidation, no occupants present, and the appellant had sought to ensure absence. Hence, the “weapon carried” aggravation was not made out.

3.2 Legal Reasoning

The court’s reasoning progresses through four steps:

Fact-finding from objective evidence.
The Ring doorbell footage depicted the appellant knocking, confirming absence, prising entry with a hammer, and then concealing it. These facts negate an intent to threaten.
Guideline interpretation.
Culpability A demands more than mere presence of a potentially dangerous item; it requires the status of a weapon. By contrast, Culpability B expressly captures possession of tools “equipped for burglary”.
Calibration of harm factors.
The court highlighted (a) psychological distress (victim impact statement) and (b) financial loss of £9,000. Both fall within Category 2 harm, justifying uplift from the starting point.
Balancing aggravation and mitigation.
Prior convictions (including robbery) aggravated seriousness but were tempered by a six-year crime-free interval, immediate admissions and demonstrated remorse. Full one-third reduction for an early plea was applied per R v Caley [2012] EWCA Crim 2821 and the Sentencing Council’s ‘Reduction for Guilty Pleas’ guideline.

3.3 Impact of the Judgment

This decision will likely reverberate in three principal ways:

Sentencing Consistency.
Trial judges will be reminded that classification under the burglary guideline demands a purpose-based examination of any object carried. A screwdriver, crowbar, hammer or even a knife used solely for entry must be scrutinised before upgrading culpability to category A.
Evidence-led Assessments.
The judgment underscores that CCTV or doorbell footage can be decisive in deciphering intent, reducing speculation and safeguarding defendants from unduly severe categorisations.
Clarification of ‘Weapon Carried’ Aggravation.
The Court delineates that “weapon carried” is qualitative—linked to threat potential—not merely quantitative (possession). Future litigants may cite Nunan to argue that an object lacks weapon status where (1) there is no victim confrontation, and (2) the item’s deployment is confined to forced entry.

4. Complex Concepts Simplified

Culpability vs Harm
Sentencing guidelines split offences into two axes: culpability (defendant’s blameworthiness) and harm (impact on victims/property). Culpability looks at intent, planning, weapons, sophistication; harm looks at loss value, injury, trauma etc.
Category A/B/C
These letters denote levels of culpability. A = high, B = medium, C = lesser. Each combines with harm levels (1, 2, 3) to yield a sentencing matrix.
Starting Point
A benchmark sentence from which the judge moves up or down, taking aggravating or mitigating factors into account.
Plea Discount
Defendants who plead guilty at the earliest opportunity receive up to one-third reduction, incentivising early admission and saving court resources.
Totality Principle
When multiple sentences are imposed, the court must ensure the overall term is fair and proportionate, avoiding a crushing sentence disproportionate to the overall criminality.

5. Conclusion

Nunan crystallises a crucial nuance in burglary sentencing: the mere presence of an implement capable of inflicting harm does not automatically elevate culpability. Instead, courts must conduct a purposive analysis—was the item intended as a weapon or a tool of entry? By rectifying the misclassification, the Court of Appeal shaved six months off the appellant’s custodial term, reaffirming the principle of proportionality. Most importantly, the decision furnishes clear guidance for future cases, ensuring that the “weapon carried” criterion is reserved for burglars who bring genuine menace into the sanctity of the home, rather than those who merely arm themselves with implements of access.

In the broader legal landscape, Nunan serves as an authoritative checkpoint, promoting fidelity to the Sentencing Council’s guidelines and discouraging speculative aggravation. Defence practitioners now possess a persuasive precedent to challenge erroneous category A findings where factual matrices align more cogently with category B. Conversely, prosecutors must assemble concrete evidence of threat or intended intimidation to justify the higher culpability bracket. The decision thus advances both accuracy and fairness in the delicate task of sentencing burglary offences.