Wilkes, R. v

When a court imposes a sentence consecutively to an earlier sentence, the totality principle requires the aggregate sentence to be just and proportionate. That assessment must take account of a material delay in prosecuting an offence which could and should have been dealt with at the earlier sentencing hearing. A guideline starting point for the later offence does not displace those requirements. The court must assess the overall punishment for the whole course of offending.

The appellant pleaded guilty to assault by penetration of a 13-year-old complainant. The offence formed part of the investigation which had led to his earlier convictions for sexual offending against three other young girls.

On 6 March 2019, the Crown Court at Sheffield imposed five years’ imprisonment, consecutive to the ten-year sentence imposed in November 2015. The appellant contended that the consecutive term failed to reflect totality and the delay in charging him, which was not his fault.

The central issue was whether the five-year consecutive sentence was just and proportionate when the index offence could and should have been before the court at the earlier sentencing.

1. The appeal was allowed in part. The court quashed the five-year consecutive term for assault by penetration and substituted two years’ imprisonment, consecutive to the existing ten-year sentence.
2. The court accepted that the index offence was the appellant’s most serious offence. It also accepted that the applicable sexual-offending guideline indicated a starting point of eight years’ custody, with a range of five to thirteen years. Had the offence been before the original sentencing court, the overall sentence would properly have exceeded ten years.
3. Nevertheless, a sentence must comply with the totality principle. Where concurrent or consecutive terms are imposed, the overriding requirement is that the overall sentence be just and proportionate. The judge had to assess the aggregate punishment, rather than apply the later offence’s guideline starting point without sufficient adjustment.
4. There had been real delay in bringing the index offence to court. It arose from the original investigation and could, and should, have been dealt with years earlier. That delay required proper allowance in the sentencing exercise.
5. A pre-plea assessment producing an aggregate of about 21 years’ imprisonment was excessive for this course of offending. Such a sentence would be appropriate for a campaign of rape, which this was not. The substituted consecutive term of two years properly reflected both totality and delay.
6. The court also quashed the £140 victim surcharge and substituted a surcharge of £120.

• Court of Appeal (Criminal Division). In [2019] EWCA Crim 1676, the court allowed the sentence appeal in part and substituted a two-year consecutive term.
• Crown Court at Sheffield. On 6 March 2019, following a guilty plea, the appellant was sentenced to five years’ imprisonment for assault by penetration, consecutive to an existing ten-year sentence.