Allen, R v

When sentencing an offender already serving a determinate sentence for earlier offending, the court must apply the totality principle by considering the sentence that would have been imposed had all offences been dealt with together. It must then ensure that the aggregate sentence is just and proportionate. A downward adjustment to the later sentence is required where the cumulative effect is manifestly excessive, even where the separate offending is grave, factually distinct, and properly attracts consecutive sentences.

The appellant was convicted at Liverpool Crown Court of rape of a child under 13 and two assaults of a child under 13 by penetration. He received special custodial sentences, including a 14-year sentence on the rape count which was consecutive to a 14-year sentence imposed at Warrington Crown Court in 2014 for sexual offending against his adult daughter.

He appealed the 2019 sentence. He accepted that the sentencing judge had applied the totality principle, but contended that the reduction made to the later sentence was insufficient. The central issue was whether the resulting total 27-year sentence was just and proportionate.

1. The appeal was allowed in part. The aggregate sentence resulting from the consecutive sentence on Count 2 was manifestly excessive and required further reduction under the totality principle.
2. The court accepted the seriousness of the 2019 offending. The appellant had exploited his relationship with the victim’s mother, the victim’s young age, and opportunities to be alone with her. The sentencing judge was entitled to find severe psychological harm and aggravating features, and to place the rape offence in Category 2A of the applicable Sentencing Council Guidelines.
3. The court also accepted that the 2014 and 2019 offending was factually separate and together demonstrated grave sexual offending against vulnerable females. Consecutive sentences remained appropriate. However, the correct totality exercise required consideration of the sentence that would have been imposed had both sets of offending been before one court at the same time.
4. The original sentence on Count 2, comprising 13 years’ custody and a one-year extension under section 236 A of the Criminal Justice Act 2003, produced a total 27-year sentence and was manifestly excessive. The court quashed that sentence and substituted 10 years and six months’ custody with a one-year extension under section 236 A. The substituted sentence was to run consecutively to the 2014 Warrington sentence.

• Court of Appeal (Criminal Division): Allowed the appeal to the extent of quashing and reducing the sentence on Count 2.
• Crown Court at Liverpool: On 16 January 2019, convicted the appellant of rape of a child under 13 and two assaults of a child under 13 by penetration. On 8 February 2019, imposed special custodial sentences, including a consecutive 14-year sentence on Count 2.
• Crown Court at Warrington: On 12 November 2014, imposed a 14-year sentence for sexual offending against the appellant’s adult daughter.