Paterson, R. v

A guideline range directed to a single offence does not necessarily cap the proper total sentence for extensive multiple offending. The sentencing court must apply totality by imposing a just and proportionate overall sentence, rather than multiplying a sentence for one count. It must avoid double counting features used to place an offence in a guideline category, while giving proper weight to distinct aggravating and mitigating factors. Where numerous grave offences cause exceptionally serious and sustained harm to multiple victims, a sentence outside the single-offence guideline range may be inevitable.

The offender, a consultant breast surgeon, was convicted at Nottingham Crown Court of 17 counts of wounding with intent contrary to Offences Against the Person Act 1861, section 18, and three counts of unlawful wounding contrary to section 20. The offences involved deliberate false representations about cancer risk and unnecessary invasive surgery on ten patients.

On 31 May 2017, the sentencing judge imposed concurrent sentences of 15 years’ imprisonment, producing a total term of 15 years. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The issue was whether the sentence properly reflected the exceptional gravity and multiplicity of the offending while complying with totality.

1. The reference was allowed. The court held that the total sentence of 15 years was unduly lenient. It quashed the 15-year sentences for the section 18 counts and substituted sentences of 20 years’ imprisonment on each such count, to run concurrently. The sentences for the section 20 counts remained unchanged.
2. The guideline range of 9 to 16 years for a category 1 section 18 offence was directed to one offence. Even one of the section 18 offences would have justified a sentence close to the top of that range because of the severe and sustained harm, deliberate conduct, and abuse of trust. The 17 section 18 offences, three section 20 offences, ten victims, and devastating consequences made a sentence outside that single-offence range inevitable.
3. Totality did not permit a simple multiplication of a sentence for one offence by the number of counts. It required a just and proportionate overall sentence. Concurrent sentences of an enhanced length were therefore appropriate.
4. The court had to avoid double counting factors already used in determining the guideline category. It nevertheless had to reflect aggravating features not thereby exhausted, including the continuing effects on victims, abuse of power, financial gain and loss, the long period of offending, and the number of victims. The limited mitigation did not justify retaining the original total sentence.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and varied the sentence: [2017] EWCA Crim 1625.
• Nottingham Crown Court: On 28 April 2017 the offender was convicted of 17 section 18 offences and three section 20 offences. On 31 May 2017, concurrent sentences produced a total term of 15 years’ imprisonment.