Bailey & Ors, R. v (Rev 1)

Totality in sentencing is a matter of substance, not drafting form. A sentencing judge need not recite the stages of the Totality Guideline, use particular words, or explain totality separately for every count. The appellate question is whether the overall sentence is just and proportionate in light of the relevant facts, mitigation, aggravation and guideline structure.

Totality does not require a reduction or concurrent sentences. Consecutive sentences may be appropriate. For guilty-plea credit on indictable-only charges, an early indication must be unequivocal, but the word likely does not automatically defeat full credit; the form and circumstances must be assessed as a whole.

Five defendants appealed sentences imposed at Northampton Crown Court for separate conspiracies to supply Class A and Class B controlled drugs. The sentencing judge imposed consecutive terms for several appellants and made a general statement that totality had been considered.

McLeish, Succo, Radford and Hall challenged the treatment of totality. McLeish also challenged his guilty-plea credit. Succo contended that an indication recorded at the Magistrates’ Court entitled him to the full one-third reduction. Bailey, convicted after trial of a single cocaine conspiracy, contended that his sentence did not reflect the mitigating features found by the judge.

The central issues were whether totality had to be articulated in a prescribed way and whether the individual sentences were erroneous or manifestly excessive.

1. The appeals of McLeish, Radford and Hall were dismissed. The appeals of Succo and Bailey were allowed. Succo’s total sentence was quashed and replaced with one of 9 years and 4 months. Bailey’s sentence was quashed and replaced with one of 8 years and 6 months.
2. Totality is concerned with the result, not the wording of sentencing remarks. A judge’s general statement that totality has been considered can be sufficient. The Totality Guideline supplies a structured aid to securing a just and proportionate overall sentence; it is neither a drafting checklist nor a mechanism that necessarily reduces sentences. Consecutive sentences do not themselves demonstrate a failure to apply totality. On appeal, the court should assess the sentence in the round against the facts, aggravating and mitigating circumstances, and the applicable guideline.
3. There was no totality error in the sentences of McLeish, Radford or Hall. The sentencing judge had identified the relevant matters and made a rounded assessment. The court also declined to disturb McLeish’s factual role findings, endorsing the restrained appellate approach in R v Hoddinott [2019] EWCA Crim 1462. McLeish was properly limited to 25% credit. The possible significance of being the first defendant to plead guilty was fact-specific and did not create an automatic additional reduction: R v Sanghera [2016] 2 Cr App R (S) 15 did not establish such a fixed rule.
4. Succo’s entry of “G (indicated)” at the Magistrates’ Court was, in context, an unequivocal indication of a future guilty plea. The legal adviser’s potentially inconsistent notation that a guilty plea was likely at the Crown Court did not displace the indication made by Succo’s solicitor. Applying the fact-sensitive approach explained in R v Lee Hodgin [2020] EWCA Crim 1388, the case was comparable to Handley [2020] EWCA Crim 361. Succo was therefore entitled to the full one-third credit.
5. For Bailey, the judge found no aggravating factors and recognised material mitigation, but imposed the guideline starting point without explaining why no reduction was made. That was an error of approach. A sentence of 8 years and 6 months properly reflected the mitigation and the sentences imposed on others.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 1719, allowed the appeals of Succo and Bailey and substituted reduced sentences; dismissed the appeals of McLeish, Radford and Hall.
• Northampton Crown Court: On 1 November 2019, imposed sentences for the drug-conspiracy offences, including consecutive sentences for several defendants.