Barrett & Ors, R. v

Where a serious offence is a distinct species of criminality from related offending, and its gravity is not adequately reflected in the sentences for that related offending, a concurrent sentence may render the overall sentence unduly lenient. A consecutive sentence is then appropriate. The court must nevertheless apply totality, including by reducing the individual consecutive term where necessary to ensure that the aggregate sentence is just and proportionate.

The offenders pleaded guilty to three conspiracies to burgle commercial premises, a burglary, and, in Matthew Brown’s case, criminal damage. The conspiracies involved a sustained and organised series of commercial burglaries, principally targeting cigarettes.

The separate burglary occurred after police had recovered stolen cigarettes. The offenders broke into premises used by a civilian police contractor, threatened a worker, recovered the cigarettes and attempted to remove forensic evidence.

On 4 September 2020, the sentencing judge imposed concurrent terms. The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that the separate burglary should have attracted a consecutive sentence. The central issue was whether the concurrency of that term made the overall sentences unduly lenient.

1. The court granted leave and allowed the Attorney General’s Reference. The sentences were unduly lenient to the extent that the four-year terms for the 26 April burglary had been ordered to run concurrently with the conspiracy sentences.

2. The burglary was a different species of criminality from the conspiracies. It involved interference with a police investigation: the offenders recovered property seized by police, sought to destroy forensic evidence, and threatened a civilian worker with violence. Its seriousness could not properly be subsumed within the conspiracy sentences.

3. The sentencing judge had treated the burglary as a grossly aggravating feature while selecting conspiracy starting points close to the statutory maximum. That structure did not give sufficient effect to the burglary’s separate seriousness. If the burglary merited a six-year sentence after trial, overall sentences of nine years and nine years six months after trial were unduly lenient.

4. A consecutive sentence was required, but totality required a reduction from the four-year term originally imposed. The court quashed the concurrent four-year burglary sentences and substituted three-year sentences to run consecutively to the conspiracy sentences.

5. The conspiracy sentences remained unchanged. The total sentences were therefore nine years’ imprisonment for Terrence Brown and Matthew Brown, and nine years and four months’ imprisonment for Otis Barrett.

• Court of Appeal (Criminal Division) — allowed the Attorney General’s Reference under section 36 of the Criminal Justice Act 1988 and substituted consecutive three-year sentences for the burglary.
• Sentencing court — on 4 September 2020 imposed concurrent sentences of six years for each conspiracy (six years and four months for Barrett) and four years for the separate burglary.