R v Flack (Perry)
Court of Appeal
Citations:  EWCA Crim 115,  2 Cr App R (S) 56.
The defendant pleaded guilty to burglary of a dwelling. This is an offence which grants higher sentencing powers than ordinary burglary. Since this was his third burglary offence, the court imposed a mandatory minimum sentence of three years.
The defendant later appealed on the basis that he had not entered a dwelling but a building site. The building in question was a residential property, but there was a large skip outside and evidence that it was undergoing renovations. However, it was not clear whether the building in use or merely temporarily vacated for repairs or renovation. The only person in the building at the time the defendant entered was a builder who was laying flooring.
- Was the building a dwelling house?
The Court of Appeal upheld the conviction. The defendant had admitted the building was a dwelling house when he pled guilty to the indictment, so there was no need to inquire further into the matter. However, the court substituted the defendant’s mandator minimum sentence for a lower one.
This Case is Authority For…
There is no single test for whether a building is a dwelling house. It is a matter of fact and degree for the jury to decide.
Burglary of a dwelling is a separate offence to burglary, and so must be included separately on the prosecution’s indictment.
Factors which might lead the court to conclude that a mandatory minimum sentence is unjust and so should not be imposed include the defendant’s young age, the lack of any harm and the crime being opportunistic in nature.