The Court of Appeal quashed a three-and-a-half-year sentence for burglary and resentenced Teymur Babayev to the same term, finding an error in principle because the original sentencing judge had taken a sexual assault count into consideration. That conviction had since been quashed on appeal.
In its judgment delivered on 8 October 2019, the court said the burglary sentence had been imposed after the trial judge stated an intention to take the sexual assault count into consideration. Although the judge had also imposed a separate 18-month sentence on that count, the sexual assault conviction was no longer before the Court of Appeal. The court said the resulting error was through no fault of the trial judge.
The burglary involved an intrusion into a woman’s apartment in the early hours of 15 June 2014 while she was asleep. She woke to feel a hand on her leg and tried to make the intruder leave. The judgment said he mirrored her movements, lunged towards her and did not leave when asked. Two phones were taken.
Police found fingerprints in the apartment, one matching Babayev’s. A search of his home address the following day led to the recovery of the woman’s two phones from his car. The judgment said Babayev denied being at the scene and made no admissions while in custody. He pleaded guilty to burglary at an early stage, though his later unsuccessful application to withdraw the plea modestly reduced the credit given for it.
In resentencing, the Court of Appeal considered the impact on the victim, including a redacted impact report. It described the intrusion into her home as having had an understandably serious impact. The court also noted that Babayev had no relevant previous convictions, had provided supporting letters, had made progress in custody, and had lived in Ireland since 2001, where his family also lived. His non-national status while serving a sentence in Ireland was given very limited weight.
The court assessed the burglary as falling in the lower end of the mid-range of sentence, while describing the aggravating factors as significant. It set a pre-mitigation term of five-and-a-half years and, after accounting for mitigating factors, imposed three-and-a-half years’ imprisonment. The court did not alter that term from the sentence imposed by the Circuit Court.