Green v R.

When sentencing further historic offences after an earlier sentence for similar criminality, the court should consider whether the earlier sentence justifies a further allowance. The exercise is fact-specific and discretionary. It is not a strict application of totality and does not require the court to deduct the earlier sentence from a hypothetical sentence for all offending.

The judge should first determine the proper sentence for the new offences, including totality among them. The judge should then assess all relevant circumstances, including recency, similarity, overlap, the opportunity to disclose offending, public-interest considerations, the offender’s age and health, and whether the combined sentences would offend totality.

The appellant, a sports coach and school cricket teacher, was convicted at Lewes Crown Court of 17 historic indecent assaults against seven boys. The offences were committed over more than a decade and involved a serious abuse of his position of trust.

On 21 September 2018 the Recorder imposed a total of 12 years’ imprisonment. The appellant had shortly before completed part of a separate nine-year sentence for more serious sexual offending against other victims, some of which overlapped in time with the present offending.

The appeal concerned whether the Recorder should have taken the earlier sentence into account when fixing the sentence for the further historic offences, and if so how that assessment should be made.

1. Appeal allowed. The individual sentences, their concurrent and consecutive structure, and the Recorder’s application of totality to the new offences alone were unobjectionable. However, the Recorder erred by refusing to take the earlier custodial sentence into account solely because of the gravity of the new offences.

2. Where there has been a previous sentence for similar historic offending, the later sentencing court should consider all the circumstances to decide whether an allowance or adjustment is appropriate. The court endorsed the nuanced and fact-specific approach in Cosburn [2013] EWCA Crim 1815. The exercise is not strict totality because the later court cannot adjust all sentences.

3. The judge should first identify the appropriate sentence for the instant offences, applying totality among them. The judge then has a discretion to make a further reduction for the previous sentence. Relevant matters include the recency and similarity of the earlier offending, temporal overlap, whether the offender could have disclosed the further offending, whether an allowance would confer an unjustified public-interest benefit, age and health, and whether the aggregate of both sentences would have offended totality.

4. The court rejected a mechanical approach of reconstructing the sentence that would have been imposed for all offences together and deducting the earlier sentence. The appellant’s failure to disclose the further offending and his contest of the trial weighed against him, consistently with R v McLean [2017] EWCA Crim 170, but did not prevent an allowance.

5. Applying those matters, a combined 21-year sentence would have been manifestly excessive. The sentence was reduced by two years, to 10 years’ imprisonment, by making the sentences for counts 15 to 18 concurrent rather than consecutive.

• Court of Appeal (Criminal Division). Allowed the sentence appeal and reduced the total sentence from 12 years’ imprisonment to 10 years’ imprisonment.

• Lewes Crown Court. On 21 September 2018, following jury convictions for 17 counts of indecent assault, imposed a total sentence of 12 years’ imprisonment.