Riley, R. v

Where distinct offences form part of the same factual narrative, sentencing must avoid double counting while producing a total sentence that reflects the overall gravity of the offending. If sentences are concurrent, the sentence for the most serious offence may need to reflect that overall criminality.

A classification of attempted murder as a financially motivated Level 1 offence does not subsume separate aggravating features, including the victim’s vulnerability and abuse of a position of trust. A reduction for mixed motives is not justified where financial gain was the offender’s primary motive.

The offender pleaded guilty to attempted murder after trying to smother a severely disabled woman for whose financial affairs he held a power of attorney. A jury convicted him of fraud by abuse of position after he misappropriated substantial sums from her funds.

Henshaw J, sitting in the Crown Court at Bristol, imposed 11 years and 8 months’ imprisonment for attempted murder and a concurrent sentence of four years and eight months for fraud. The Solicitor General referred the total sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the sentences, taken together, properly reflected the gravity of the related but distinct offending.

1. The reference was allowed. The court granted leave, quashed the sentence of 11 years and 8 months for attempted murder, and substituted 15 years’ imprisonment. The concurrent fraud sentence remained unchanged.

2. The offences were distinct but formed part of the same story. The sentencing judge was right to avoid double counting, but the total sentence nevertheless had to reflect the overall gravity of the fraud and attempted murder. Where concurrent sentences are imposed, this may require the sentence for the most serious offence to encompass the overall criminality.

3. The fraud and the desire to conceal it supported the Level 1 categorisation of the attempted murder. That categorisation did not, however, account for the victim’s particular vulnerability or the offender’s abuse of a position of trust. Both were separate aggravating factors under the attempted-murder guideline.

4. R v Narendra Tailor [2007] EWCA Crim 1564 gave no material assistance. Unlike that case, financial gain was the offender’s primary motive; this was not a mixed-motives case capable of justifying a reduced sentence. The offender’s age permitted only modest mitigation, and his previous care for the victim could not mitigate an attempt to kill her for financial gain.

5. The appropriate notional total after trial was 18 years. Applying the unchallenged one-sixth credit for the guilty plea produced a sentence of 15 years for attempted murder.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held the total sentence unduly lenient. It substituted 15 years’ imprisonment for attempted murder and left the concurrent fraud sentence unchanged.
• Crown Court at Bristol: Henshaw J sentenced the offender to 11 years and 8 months’ imprisonment for attempted murder, with a concurrent sentence of four years and eight months for fraud by abuse of position.