Xavier, R v

In a sentencing appeal, the guideline category must reflect the harm and culpability demonstrated by the offence. Premeditation, use of weapons and attacks on vulnerable victims supported greater culpability for offences under the Offences Against the Person Act 1861.

Totality does not require the sentence for an individual offence to remain within its guideline range where the offender’s overall criminality, serious record, multiple violent offences and efforts to pervert the course of justice justify a longer sentence. A renewed and meritless application for leave to appeal may attract a loss of time order.

The applicant renewed an out-of-time application for leave to appeal sentences imposed at Norwich Crown Court on 23 March 2018. The single judge had refused both an extension of 84 days and permission to appeal.

He had received an extended sentence of 16 years for causing grievous bodily harm with intent, comprising 12 years’ custody and a four-year extended licence period. Concurrent sentences were imposed for a further section 18 assault and for acts intended to pervert the course of justice.

The assaults arose when the applicant and a co-defendant attacked two vulnerable drug users to enforce a drugs debt. The issue was whether the sentencing judge had wrongly assessed culpability and failed to apply totality.

1. The renewed application for leave to appeal was refused. The court held that it had no merit.
2. The sentencing judge correctly treated the section 18 offences as involving lesser harm but greater culpability. The attacks were planned, involved weapons and were directed at vulnerable victims. Those features supported the category adopted by the judge.
3. The calculation derived from a guideline starting point and limited credit for guilty pleas did not establish an error in totality. Totality required the court to assess the applicant’s overall criminality. He had a grave and persistent record, committed two violent offences in furtherance of a drug-dealing enterprise, and then made sustained attempts to pervert the course of justice.
4. The overall sentence was therefore not excessive. As the application was meritless, the court made a 28-day loss of time order.

• Court of Appeal (Criminal Division) In [2019] EWCA Crim 1133, the court refused the renewed application for leave to appeal and made a 28-day loss of time order.
• Crown Court at Norwich On 23 March 2018, the applicant received an extended sentence of 16 years for causing grievous bodily harm with intent, with concurrent sentences for a further section 18 assault and perverting the course of justice.
• Single judge Permission to appeal and an extension of 84 days to make the application were refused.