Attorney General 's Reference No 138 of 2004

The totality principle may justify moderating the sentence for drug offences within an overall sentence. It does not justify concurrent sentences that fail to reflect distinct and serious criminality. Where false imprisonment connected with drug dealing is a separate and severe offence, and sexual offending against a child is also grave and deliberate, each may require a consecutive sentence.

On an Attorney General reference under Criminal Justice Act 1988, the Court may increase an unduly lenient total sentence. It must nevertheless allow for the offender being sentenced for a second time.

The offender pleaded guilty at Worcester Crown Court to drug-supply and possession offences, conspiracy to commit an act of gross indecency with a child, false imprisonment, and supplying crack cocaine to the person falsely imprisoned. The judge imposed concurrent sentences totalling five years’ imprisonment.

The Attorney General referred the sentence as unduly lenient. The central issue was whether concurrent terms properly reflected the separate seriousness of the false imprisonment and the sexual offending, having regard to totality and to the fact that the Court was resentencing the offender.

1. The Court granted leave under section 36 of the Criminal Justice Act 1988 and held that the total sentence of five years’ imprisonment was unduly lenient.

2. The individual sentences for the drug offences were lenient, but the Court would not interfere with them. Applying totality, a five-year sentence for those offences was justifiable despite the offender’s prolonged and profitable Class A drug dealing. The Court treated R v Dhajit [1999] 2 Cr App R(S) 142 as a useful starting point for the seriousness of Class A supply offences.

3. The concurrent treatment of the false imprisonment and the child-sexual offence was unjustified. The false imprisonment was not integral to small-scale drug supply. It was a serious additional offence involving threats, humiliation and enforced drug use. It required a sentence of two and a half years’ imprisonment. The conspiracy involving the child was deliberate, grave and aggravated by the recorded sexual conduct, payment and apparent grooming. It required a three-year sentence consecutive to all the other sentences.

4. Absent the fact of resentencing, the appropriate total would have been ten and a half years. Because the offender was being sentenced for a second time, the Court ordered the two-and-a-half-year sentence for false imprisonment to run concurrently with the five-year drug sentence. The three-year sentence for the child offence was consecutive. The substituted total was eight years’ imprisonment, ranking as if imposed by the sentencing judge.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the Court granted leave, found the sentence unduly lenient, and substituted a total sentence of eight years’ imprisonment: [2005] EWCA Crim 198.
• Crown Court at Worcester: On 18 October 2004, the offender received concurrent sentences totalling five years’ imprisonment.