Illing, R v

Where an offender repeatedly and deliberately breaches court orders, and prior custodial sentences have not deterred further offending, a sentencing court may make a radical departure from a guideline indicating a non-custodial disposal if that is required in the interests of justice.

In sentencing overlapping offences, the court must assess totality. Consecutive terms may be excessive where the factual circumstances of one offence substantially overlap with another, even though neither offence necessarily entails the other.

R v Illing concerned an appeal against sentence following guilty pleas at Ipswich Crown Court to four breaches of a restraining order, contrary to Protection from Harassment Act 1997, section 5, and one failure to comply with notification requirements, contrary to Sexual Offences Act 2003, section 91.

The judge imposed concurrent terms of 15 months for the restraining-order breaches and a consecutive term of 15 months for the notification offence, producing 30 months’ imprisonment. The appellant accepted the principle of consecutive sentencing but contended that the individual and total sentences were excessive, particularly because there had been no contact with the woman protected by the order and because the notification offence overlapped with one breach.

1. The appeal was allowed to the limited extent that the total sentence was excessive. The Court quashed all sentences and substituted concurrent terms of two years’ imprisonment on every count. The total sentence was therefore reduced from 30 months to two years.
2. The absence of contact with the woman protected by the restraining order did not make the repeated breaches suitable for a non-custodial sentence. The appellant had deliberately and flagrantly disregarded court orders, had not been deterred by earlier imprisonment, and committed the first current offence the day after release from custody.
3. The sentencing guideline’s indication of a medium-range community order for more than one breach involving no contact did not require that outcome. Given the established pattern of offending, the judge was entitled to conclude that following the guideline would not serve the interests of justice. A radical departure from it, and significant custodial terms, were permissible.
4. The Court nevertheless applied the totality principle. The notification offence was legally distinct from the restraining-order breach: the appellant could have entered Colchester in breach of the order without staying long enough to trigger the notification requirement. Its facts nevertheless significantly overlapped with those of count 2. A consecutive term of 15 months therefore made the aggregate sentence too long.

• Court of Appeal (Criminal Division) — sentence appeal allowed in part; all sentences quashed and concurrent terms of two years substituted: [2017] EWCA Crim 1347.
• Crown Court at Ipswich — following guilty pleas, imposed concurrent terms of 15 months for four restraining-order breaches and a consecutive 15-month term for the notification offence.