Gwilym, R. v

When sentencing for associated offences at the same time, a court may apply the principle of totality by taking their criminality into account when fixing the custodial term for the principal offence. If an associated offence has been brought into account in that way, its determinate sentence must run concurrently with the extended sentence, rather than consecutively.

An extended sentence remains appropriate where the recalculated custodial term for the principal offence reaches the relevant statutory threshold. On an offender’s appeal, the court cannot adopt a preferred sentencing structure if it would impermissibly increase the overall sentence.

The appellant pleaded guilty in the Crown Court at Bristol to racially aggravated common assault and was convicted after trial of assault occasioning actual bodily harm against his partner. The Recorder found him to be a dangerous offender and imposed a five-year extended sentence on the latter count, comprising four years’ custody and one year of extended licence. He also imposed a consecutive determinate sentence for the former count and activated a suspended sentence.

The appellant challenged the extended sentence under section 226A of the Criminal Justice Act 2003 and the consecutive determinate term. The central issue was whether the appropriate application of totality supported the extended sentence and required the associated determinate term to be concurrent.

1. The appeal was allowed to a limited extent. The extended sentence on Count 3 remained in force, but the sentence on Count 1 was ordered to run concurrently rather than consecutively.

2. The Recorder had erred by dividing the appellant’s criminality for Count 1. Part had been reflected in the custodial term for Count 3, while the balance was made consecutive. It was generally inappropriate to make a determinate sentence consecutive to an extended sentence, as the court noted by reference to R v Brown [2007] 1 Cr App R(S) 77 and R v Pinnell and Joyce [2011] 2 Cr App R(S) 30.

3. Because of the sentencing errors, the court assessed sentence afresh. The appellant’s dangerousness was not disputed. It was open to the court, consistently with totality, to take associated offences sentenced at the same time into account when assessing the custodial term for the principal offence.

4. The assault in Count 3 involved greater harm, higher culpability and numerous serious aggravating features. A post-trial term of three and a half years was appropriate. Count 1 also justified a notional consecutive term of nine months after trial, reduced to six months for the guilty plea. Taking that six months into account when fixing the term for Count 3 made a custodial term of at least four years appropriate. The complaint concerning the extended-sentence threshold under section 226A of the Criminal Justice Act 2003 therefore failed.

5. Since Count 1 had already been reflected in the Count 3 term, its sentence had to be concurrent. Although the court would otherwise have considered ordering the activated suspended sentence to run consecutively, that would have impermissibly increased the appellant’s sentence. The total sentence was therefore the five-year extended sentence on Count 3, comprising four years’ imprisonment and one year of extended licence.

• Court of Appeal (Criminal Division)—Allowed the appeal to the limited extent of making the Count 1 sentence concurrent with the extended sentence: [2018] EWCA Crim 377.
• Crown Court at Bristol—The appellant pleaded guilty to racially aggravated common assault on 27 June 2016 and was convicted after trial of assault occasioning actual bodily harm on 10 August 2016. On 26 August 2016, the Recorder imposed a five-year extended sentence on Count 3, a consecutive sentence on Count 1, and activated a suspended sentence. On 1 September 2016, he reduced the Count 1 term to 13 weeks’ imprisonment, still consecutive.