Falder, R. v

When sentencing for numerous offences, the principle of totality requires a sentence that reflects all the offending and is just and proportionate. A court must not reach the final sentence by simply adding notional sentences for separate categories where offending and aggravating features overlap. The risk of double counting must be addressed expressly.

Consecutive extended sentences are lawful, but should generally be avoided where possible because they may obscure the date of eligibility for release on licence. The appellate court may alter the structure and component parts of a sentence, provided that the offender is not dealt with more severely overall.

The applicant pleaded guilty at Birmingham Crown Court to 137 sexual or sexually motivated offences committed over about a decade. They included blackmail, child sexual exploitation, encouraging rape, forced compulsory labour, voyeurism and offences involving indecent images of children.

He was found dangerous and received consecutive extended determinate sentences totalling 38 years, comprising 32 years’ custody and a six-year extension period. He sought leave to appeal on the ground that the total custodial term was manifestly excessive. The central issue was whether the sentencing judge had made sufficient allowance for totality when sentencing extensive and overlapping offending.

1. Appeal allowed. Although the offending was exceptionally grave, the 32-year custodial term was manifestly excessive. The court substituted concurrent extended sentences of 33 years on the principal counts, each comprising 25 years’ custody and an eight-year extension period.

2. The sentencing judge was entitled to begin by identifying appropriate sentences for categories of offending before applying totality. However, the final sentence must reflect all offending in a just and proportionate way. It cannot be reached merely by adding notional sentences. Here, overlapping conduct and aggravating features had appeared in more than one category. That created a material risk of double counting, particularly in categories which together had added 21 years before credit for pleas and totality.

3. The court accepted that the applicant’s long-running, planned and concealed offending, his exploitation of vulnerable victims, and his encouragement of grave crimes against children called for a very lengthy extended sentence. Nonetheless, comparison with Leighton [2017] EWCA (Crim) 2057, while not determinative, reinforced the conclusion that insufficient allowance had been made for totality. Full credit for the guilty pleas and a just overall sentence required a 25-year custodial term.

4. Consecutive extended sentences were not unlawful. They may nevertheless cause confusion about licence-release eligibility and should generally be avoided if possible. Concurrent extended sentences reflecting the overall gravity of the offending were preferable. The court could alter the sentence’s structure and component parts because the applicant was not dealt with more severely overall.

5. The extended licence period was increased to the statutory maximum of eight years. All other sentences and orders remained unchanged.

• Court of Appeal (Criminal Division) — In Falder, R. v [2018] EWCA Crim 2514, the court granted leave and allowed the sentence appeal. It reduced the custodial term from 32 to 25 years and increased the extension period from six to eight years.
• Crown Court at Birmingham — On 19 February 2018, following guilty pleas to 137 offences, the applicant received consecutive extended determinate sentences totalling 38 years, comprising 32 years’ custody and a six-year extension period.