McMullen, R. v

Factual and Procedural Background

The Solicitor General applied for leave to refer a sentence regarded as unduly lenient, passed by HHJ Reid concerning an offender with a significant history of dishonesty and dwelling-house burglaries. The offender committed a burglary on 31 December 2022 in a flat in London SE16, stealing items valued over £3,000. The offender, aged 36 at the time of sentencing, had 34 previous convictions totaling 92 offences, including numerous dwelling burglaries and other serious crimes, some committed while on bail. He was a "third striker" under section 314 of the Sentencing Code, having been convicted of dwelling burglaries in 2016 and 2019 and sentenced to custodial terms. On 5 June 2024, the offender was sentenced for multiple offences, including several dwelling burglaries, receiving prison sentences ranging from 3 to 6 years concurrent.

The offence committed on New Year's Eve 2022 was typical of the offender's pattern of breaking into dwellings via windows and conducting untidy searches. The offences were categorised as 1B, indicating high harm and medium culpability, with guideline starting points of 2 years and ranges of 1 to 4 years. The sentencing judge noted the offender was a three-striker and explained the mandatory minimum custodial sentence of 3 years unless exceptional circumstances applied. The offender was arrested in February 2023, but was not charged until March 2025, and pleaded guilty in May 2025, receiving a 25% reduction for the plea.

At the sentencing hearing before HHJ Reid on 19 May 2025, the judge considered the offence's proximity in time to previously sentenced offences and the unusual proposal of a conditional discharge. The prosecution acknowledged an unreasonable delay in charging the offender. The judge, recognising the offender's "terrible" record and the offence's category, decided to impose a conditional discharge for three years, citing exceptional circumstances related to the offender's expected early release date and the delay in prosecution. The judge explained the consequences of reoffending during the discharge period.

Legal Issues Presented

1. Whether the sentence imposed by HHJ Reid was unduly lenient.
2. If the sentence was unduly lenient, whether the court should intervene and refer the sentence for review.

Arguments of the Parties

Solicitor General's Arguments

• The sentence was unduly lenient given the offender's serious criminal history and the nature of the offence.
• The sentence was outside the appropriate category range for a 1B offence and outside the guideline range altogether.
• The judge should have imposed a custodial sentence of significant length, considering the sentence already being served by the offender.
• The delay in charging the offender was unreasonable, but the sentence imposed did not adequately reflect the seriousness of the offence.

Offender's Arguments

• The sentence was within the judge's discretion and the reasons for imposing a conditional discharge were sound.
• Although unusual to impose a conditional discharge on a recidivist burglar, it was justifiable and contemplated by the sentencing guideline.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the correctness of the sentencing judge’s categorisation of the offence and recognition of the offender as a three-striker under section 314. It accepted that exceptional circumstances existed, particularly due to the delay in charging and the offender’s ongoing custodial sentence from June 2024. The court noted that if the current offence had been sentenced concurrently with the previous offences, the overall sentence outcome would have been unchanged or minimally adjusted. The judge’s discretion to impose a conditional discharge was affirmed, especially given the offender’s expected release date and the impact of the delay. The court found no material feature omitted or inappropriate consideration in the sentencing judge’s decision. It concluded that the sentencing judge’s approach was a reasonable, intelligent exercise of discretion aimed at allowing future scope for sentencing if the offender reoffended, rather than imposing an additional custodial sentence immediately.

Holding and Implications

The court REFUSED LEAVE to refer the sentence as unduly lenient.

The decision means the conditional discharge sentence imposed by HHJ Reid stands. The court recognized the exceptional circumstances justifying the sentence and confirmed that imposing an additional custodial sentence concurrent or consecutive to the existing one was discretionary. No new precedent was established; the ruling emphasizes the court’s respect for judicial discretion in complex sentencing scenarios involving multiple offences and procedural delays.