SW, R. v

In assessing whether a custodial term is manifestly excessive, the sentencing court may reflect the offender’s overall course of criminal conduct, including associated offences occurring before and after the principal offence. It must, however, give proper effect to totality and avoid double counting aggravating features.

A severe sentence will stand where the judge has properly accounted for totality and the aggregate term is commensurate with the gravity and sustained nature of the offending.

The applicant pleaded guilty at Chelmsford Crown Court to three assaults occasioning actual bodily harm, rape, and breach of a restraining order. The offences concerned serious and sustained domestic violence against his wife, against a background of earlier coercive and controlling behaviour and violence.

The sentencing judge found him dangerous and imposed an extended sentence under Criminal Justice Act 2003, section 226A. It comprised a custodial term of 12 years and an extension period of eight years for rape, with concurrent sentences for the other offences.

After a single judge refused leave, the applicant renewed his application to appeal against sentence. He challenged only the length of the custodial term, alleging an excessive starting point, inadequate totality, double counting, and insufficient allowance for personal mitigation.

1. The renewed application for leave to appeal against sentence was refused. The overall pre-credit custodial term of 16 years was not arguably manifestly excessive.

2. The sentencing judge was entitled to place the rape at the top of the relevant category range. Its aggravating features included sustained, sadistic and humiliating domestic violence against a vulnerable victim, together with earlier violence.

3. The court rejected the submission that the judge had added three or four years solely for breach of the restraining order. That submission misread the sentencing remarks. The judge had increased the notional sentence to reflect both the later assault and the breach of the order.

4. There was no double counting. The judge had properly treated the associated offending as part of the overall criminal conduct while having regard to totality.

5. The applicant’s guilty pleas received appropriate credit. His asserted mitigation did not justify a further reduction. The absence of previous sexual convictions was outweighed by the prior domestic-violence conviction, and the repeated breach of the restraining order undermined the asserted progress in addressing his behaviour. The judge had also considered the medical evidence and was entitled to find that it warranted no reduction.

The resulting sentence was commensurate with the gravity of the course of conduct and was not disproportionate.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against sentence refused.
• Crown Court at Chelmsford: on 13 June 2019, following guilty pleas, the applicant received an extended sentence under section 226A of the Criminal Justice Act 2003.