Sparkes, R v

The totality principle applies where consecutive sentences include an offence subject to a statutory minimum term. The court must ensure that the aggregate sentence is proportionate to the offender’s overall criminality, including by considering the sentence that would have been imposed had all offences been dealt with together.

A defendant’s failure to plead guilty earlier affects credit for the plea. It does not remove entitlement to a totality assessment. The principle must be applied without substantially undermining Parliament’s purpose in imposing a mandatory minimum. Where the statutory conditions permit departure because the minimum would be unjust, the court may give effect both to totality and to plea credit.

The appellant pleaded guilty at Northampton Crown Court to two night-time domestic burglaries and two thefts of cars committed while on bail for earlier domestic burglaries. On 28 September 2010, the judge imposed concurrent terms of three years’ imprisonment, consecutive to a five-year sentence imposed on 14 June 2010 for the earlier offending.

The appellant did not challenge the three-year sentences considered individually. His appeal concerned whether making them consecutive produced a disproportionate aggregate sentence and, in particular, how the totality principle operated alongside the mandatory minimum for a third domestic burglary under Powers of Criminal Courts (Sentencing) Act 2000, section 111.

1. Appeal allowed. The court substituted concurrent sentences of 18 months’ imprisonment for the 2010 offences, consecutive to the five-year sentence already being served. The resulting aggregate term was six and a half years’ imprisonment.

2. The judge was required to apply totality notwithstanding that the later offences had been committed while the appellant was on bail, and notwithstanding that he had chosen not to admit them when sentenced for the earlier offences. The latter matter was relevant to the limited discount for his late guilty pleas, not to whether all offending should be assessed in the round.

3. Applying Watts [2000] 1 Cr App R (S) 460, the court held that the relevant inquiry was whether the same aggregate sentence would have resulted had all offences been sentenced together. A notional starting point of about nine and a half years for all offending was excessive. The appropriate starting point was about eight years, leading after plea credit to a total of six and a half years.

4. The mandatory minimum under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 did not displace totality. Consistently with Raza [2010] 1 Cr App R (S) 56, totality must not be used so as substantially to defeat Parliament’s intended effect of a mandatory minimum. However, the statutory power to depart where the particular circumstances make the minimum unjust, together with plea credit under section 144(2) of the Criminal Justice Act 2003, enabled a proportionate aggregate sentence without undermining that purpose.

5. On these facts, consecutive three-year terms would breach totality. Consecutive 18-month terms were justified and did not undermine Parliament’s will.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted concurrent terms of 18 months’ imprisonment for the 2010 offences, consecutive to the existing five-year term.
• Northampton Crown Court: On 28 September 2010, imposed concurrent terms of three years’ imprisonment for the 2010 burglaries and thefts, consecutive to five years’ imprisonment imposed on 14 June 2010 for earlier offending.